The TPP Education Project, IP: An Intelligent Look at Intellectual Property in the Trans-Pacific Partnership

This article is the third in our education series about the Trans-Pacific Partnership. Through these analytic pieces we aim to enhance understanding without sensationalism. Our goal through the series is to provide a forum too often lost in the main stream media's echo chamber - we want to tell you what you need to know, not what you want to hear.

The other day after I called out Robert Reich's grifting on the Trans-Pacific Partnership, one of the so-called "progressive" organizations pimping Reich's video sent out their Communications Director to namecall but never accept accountability for Reich's treachery. This character, Democracy for America's Neil Sorka, told me that the TPP would kill AIDS patients by protecting IP rights before claiming to be a "supporter" of the President's, with no apparent sense of irony that he'd accused the man of attempting to murder AIDS patients just moments earlier. Some "support".

But my feelings of sadness at DFA's downward grift spiral as someone who not only was a DFA scholar to Netroots Nation but also served as a co-chair of the local DFA affiliate for a few terms aside, is there something to the claim that the Trans-Pacific Partnership under consideration would harm access to medication for AIDS patients? I mean, is President Obama really either negligently or intentionally trying to kill people with HIV? More broadly, just what are the implications of intellectual property provisions being sought the United States under the TPP?

To find the truth, we will look at the official statement of position by the US Trade Representative on TPP. We will explore whether intellectual property is really only a tool for multinationals to oppress people or if it actually has real life benefits.

IP, Its Needs and Its Applications: While our own patent system could use some help, the concept of intellectual property rights is central to both innovation and trade. After all, I bet none of the people who are opposing the TPP but have also written a book or two has any intention to give up their intellectual property (in this case known as copyright) to their work. Without IP rights, there is nothing keeping China or any other country from cheaply copying and ripping off investments American companies have made, and there is nothing keeping me copying Reich's book word for word and selling it as my own work.

Concerns about abuses of the patent system are well founded, however. Pharmaceutical companies have been especially notorious about exploiting loopholes in the US Patent system to maintain price control well beyond the 20-year patent window. But some opponents of TPP seem to believe that we ought to throw out the baby with the bathwater, that patents are an intrinsic evil and that to fix the abuses, the critical protection for intellectual property must be dropped. That would be like shooting a cancer patient to kill their cancer-infected cells.

While patent reform languishes in Congress, however, trade agreements can have significant effect in improving the patent system, and the free flow of trade can be used to make innovations - some life altering, some life saving - more accessible, if the right terms are commanded.

Is it?

The Position of the United States: In that view, the position of the US on intellectual property as it relates to the TPP should be seen as consistent with the goal of access as well as innovation. In the TPP, the United States asks for, among other things:

Pharmaceutical IP provisions that promote innovation and the development of new, lifesaving medicines, create opportunities for robust generic drug competition, and ensure affordable access to medicines, taking into account levels of development among the TPP countries and their existing laws and international commitments;

That hardly sounds like a system where American multinationals get to sweep in and drive out generic production to raise drug prices in developing markets. Quite the opposite, the administration is seeking better opportunities for generics and access, one may even say as an end-run around Congress' inability to take up the vital issue for reform.

The fearmongering about HIV medication access is also unproductive, considering that between 2006 and 2012, the number of people receiving antiretroviral therapy in Africa had gone from barely 1 million to 7.6 million. Great need still remains, to be certain, but the numbers represent an unprecedented commitment by the United States and the world community that deserve better than incendiary attacks.

But assuring patient access to generics and promoting drug competition isn't all the Obama administration is seeking to do with the IP provisions in the TPP. In another one of the US demands, the TPP would to end the abuse of copyrights to thwart freedoms of speech and press. The US seeks:

Commitments that obligate countries to seek to achieve balance in their copyright systems by means of, among other approaches, limitations or exceptions that allow for the use of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship, and research;

These may be the clearest terms ever used to protect and expand the rights of civic criticism, free speech and independent press in the context of a trade agreement. Countries and corporations under the TPP will not be able to use copyrights and patents to stifle free speech, take down critical reports of products from news and video sites by claiming infringement.

For the longest time, progressives have rightly made the point that so far, free trade seem to have only expanded the rights of corporations while neglecting the rights of workers and citizens. We discussed the way the administration is using the TPP to globalize the rights of the worker in the last installment of the TPP Education Project. Now we see that if realized, the TPP would also be an unprecedented globalization of the rights of citizens, students and press in the context of a trade agreement.

I cannot say much to change the minds of those who are convinced that intellectual property is, in and of itself, an intrinsic problem. But we can say that if one is concerned about the abuse of the system, then one must also understand that just as the IP system can be abused, so it can be used for the greater good. IP provisions are always going to be part of trade agreements, and rejecting it altogether would be a pipe dream even if it had merit.

As such, we are left with two options: withdraw from global trade altogether, or use our influence to shape trade agreements to respect the values of putting people first. If we chose the latter, we have a responsibility to globalize the political rights of citizens when it comes to intellectual property and not simply the business rights of the corporations. We have a responsibility to ensure the human right to access to lifesaving treatment and not simply to protect drug patents. TPP strives to do both.



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