Halloween has come early this year, with WikiLeaks’ release of the latest version of the Trans-Pacific Partnership.

With a customary flourish, Julian Assange released the text, commenting:

“The selective secrecy surrounding the TPP negotiations, which has let in a few cashed-up megacorps but excluded everyone else, reveals a telling fear of public scrutiny. By publishing this text we allow the public to engage in issues that will have such a fundamental impact on their lives.”

The Anti-Counterfeiting Trade Agreement (ACTA) was considered dead and buried. The deal contained intellectual property enforcement measures to address copyright piracy, trademark counterfeiting and border measures. After civil and political protests in Europe, the United States, Canada, and Australia, ACTA collapsed, under the weight of criticism.

But like an undead zombie, much of ACTA has been revived in the intellectual property chapter of the Trans-Pacific Partnership (TPP). The United States Trade Representative has been engaged in policy laundering — transposing policy proposals and ideas from ACTA to the TPP.

The Intellectual Property Chapter of the TPP is much more extensive than the TRIPS Agreement in the World Trade Organization, or the intellectual property chapters in TRIPS+ agreements like the Australia-United States Free Trade Agreement.

Summarising the chapter, James Love from Knowledge Ecology International has commented:

“The May 16, 2014 version of the consolidated negotiating text for the Intellectual Property Chapter for the Trans-Pacific Partnership (TPP) agreement is a long, complex document that taken as a whole is designed to expand and extend monopolies on knowledge goods, including in particular publisher-owned copyrights, patents on inventions, and monopoly rights in data used to register new drugs, vaccines and agricultural chemical products.”

The leaked text reveals a battle for the heart and soul of intellectual property. The United States and Japan have been pushing for longer and stronger intellectual property rights. Canada, New Zealand, Singapore, Mexico, Peru, Chile, Brunei, Vietnam, and Malaysia have pushed back, arguing for a recognition of intellectual property serving public policy objectives, such as the promotion of public health, access to knowledge, and competition.

Australia has finally shown its hand in the negotiations. The Abbott government has been pushing for text, promoting intellectual property enforcement:

“Each Party confirms its commitment to reducing impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, and through greater quality, efficiency and transparency in its intellectual property administration and registration systems.”

Sadly, the Abbott government seems to have often aligned itself with the United States and Japan in the IP chapter of the TPP.

The TPP is literally a Mickey Mouse agreement — with a proposal for a copyright term extension throughout the Pacific Rim to benefit Disney and other Hollywood film companies. The TPP also proposes a raft of copyright maximalist proposals — including strong protection of technological protection measures and rights management information, and an arsenal of enforcement measures. A non-paper outlines a regime for safe harbours for internet service providers. Rupert Murdoch would be happy with the promise of special protection for satellite and cable signals. The TPP chimes with the efforts of the Attorney-General George Brandis to have a domestic copyright crackdown in Australia — with extended liability for copyright intermediaries, like internet service providers, and wider enforcement measures.

In her classic book No Logo, Naomi Klein warned of the rise of brand bullies, with the expansion of protection for well-known trademarks, and the globalisation of markets. The International Trademark Association (INTA) has been lobbying hard for stronger protection of trademarks and related rights. The TPP seeks to provide broad protection for well-known and famous trademarks, and remedies for counterfeiting. The TPP offers additional remedies for “cybersquatting” on internet domain names. A number of countries have pushed for stronger protection of geographical indications for wine regions — the US, though, has sought to nobble these proposals.

It is disturbing that the Australian government has failed to protect tobacco control measures like graphic health warnings and the plain packaging of tobacco products in the IP chapter of the TPP.

The pharmaceutical drug industry has lobbied heavily upon patent law and data protection in the TPP. Burcu Kilic from Public Citizen has analysed the leaked TPP text on public health.The United States has been pushing for an expansive definition of inventions, patent term extensions and evergreening, marketing linkage and data exclusivity. MSF has been concerned about Australia’s role in the debate:

“While the Australian government continues to oppose many of the most problematic provisions, we are concerned about Australian support for the U.S. government’s push to mandate rules that facilitate secondary and abusive patenting by pharmaceutical companies, which blocks more affordable generic competition.There has been concern about the regime for access to essential medicines — a topic of great significance given the current public health crisis in respect of Ebola.”

In addition, the United States Trade Representative has been pushing for criminal penalties and procedures in respect of trade secrets to protect its flagship technology companies, as well as government concerns. There has been a great deal of concern that such measures could be deployed against information technology activists (in the manner of the late Aaron Swartz).

Journalists — particularly investigative journalists — and media companies could be targeted by corporations and governments for revealing trade secrets. WikiLeaks and whistleblowers, such as Assange, Chelsea Manning and Edward Snowden could also be targeted for revealing government secrets.

In total, the TPP is a Halloween horror-show, full of frightening and terrifying measures designed to boost the intellectual property rights of large transnational companies.

*Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on intellectual property and climate change. 

Peter Fray

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