The 12 countries participating in the Trans-Pacific Partnership finally came to an agreement on the more-or-less final draft on October 6. Each member nation soon gets to kick off its own ratifying process, but until that formally begins, the entire text is still a closely-held secret.
Or at least, most of the text is. One chapter, however, has leaked, and it has consumer and tech advocates seriously worried. Here’s what we know.
What got leaked?
WikiLeaks has posted a full, apparently near-final version of the as-yet unnumbered chapter on intellectual property rights. The date on the text is October 5; since the participating nations announced they had reached an accord on October 6, it seems likely to be the final draft in all important respects. (Placeholders remain for the sort of non-content pieces, like chapter number and article headings.) The full text of the single chapter (PDF) is about 60 pages long.
What areas does the IP chapter cover?
The text deals with all issues of intellectual property, including patents, copyright, and trademarks. That sounds broad because it is: those issues cover everything from online file-sharing to drug patents.
Among the specific subsections are articles specifically regarding:
- Domain name cybersquatting
- What categories of invention a nation may determine cannot be patented
- Rules boosting exclusivity for “agricultural chemical products”
- Protection for pharmaceutical product patents
- Protection for industrial designs
- Guarantees for protection of copyright, including rights of reproduction, broadcast, and distribution
- Extension of all copyright terms to a minimum of 70 years + the life of the author
- DRM and rights protection (“technological protection measures”)
Which parts are raising the most hackles?
Concerns specifically based on the IP chapter generally circle around three areas: pharmaceutical patents, copyrights, and DRM.
Okay, what’s the deal with the drug patents?
Opposition to the TPP sections on pharmaceuticals comes down to concerns over cost and availability. Provisions in the treaty would extend the IP rights for certain drugs and delay the development and approval of generics.
Brand-name medicine is way more expensive than the generic stuff; anyone who’s picked up a bottle of store-brand ibuprofen instead of name-brand Advil or Motrin knows that much. When you get to prescription drugs, the difference gets even more stark, and can in some cases run into thousands of dollars… per dose.
So, consumers (and their health insurance companies) like generics, because they do the same thing, with less of a punch to the wallet. But of course the premium pharmaceutical companies don’t like generics, because then they do not get to print money. So they do anything they can to interfere with that process. Including lobbying hard to have their interests protected in international trade agreements.
Politico, analyzing an earlier leaked version of the draft back in May, explained that the suggested changes would significantly delay the time it would take for new generics to come to market — and the changes, and the way they apply to all participating nations, would mean that some nations might not get certain generics at all.
The end result, across the board, would likely be significant increases in (already-high) drug prices, especially facing the poorest consumers who can least afford it.
And what’s the deal with copyright and DRM?
The frustrations over the copyright provisions come down to three major areas: extension, enforcement, and privacy.
Copyright extensions in the U.S. over the past 20 years have already made it so no works can enter the public domain until at least 2019, and the TPP is set to expand and solidify that in all member nations, which would be required to agree to copyright terms of at least life of the author plus 70 years.
So let’s say you were born in 1980 and publish your first book in 2015, at age 35. The crystal ball says you will be fortunate and live to a ripe old age of 90 before passing away peacefully in 2070. The rights-holder of your book at that future time — your estate, heirs, or publisher — would then continue to hold the exclusive copyright on that book you published this year until at least 2140, if not longer. That’s been the law in the U.S. since 1998, but would now apply to all 12 nations.
In addition to expanding the pool of what stays under copyright and for how long, the enforcement mechanisms for investigating and punishing those copyright infringements have created strong concern. The TPP requires participating nations to determine and implement some kind of legal framework for catching infringers, which means getting customer data from ISPs.
As BoingBoing explains it, any country prosecuting someone for “intellectual property theft” can demand that other countries turn over a huge amount of otherwise private data: “information regarding any person involved in any aspect of the infringement or alleged infringement, and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution.”
ZDNet has a thorough breakdown of all the relevant passages on enforcement. The TL;DR version? In all participating nations, anyone found to have infringed copyright will have to pay civil damages… and the TPP grants courts in all those countries the rights to consider basically everything and set the bar sky-high in determining those penalties.
Those penalties apply to any act that involves circumventing DRM on a product, too — even if you don’t distribute the product in violation of copyright, the EFF explains.
BoingBoing also notes one particular clause of concern when it comes to whistleblowers: “Under the terms of the text, countries in the TPP can force each other to suspend legal proceedings if the trial would cause embarrassing information — information ‘detrimental to a party’s economic interests, international relations, or national defense or national security’ — would come to light. That would be the Wikileaks/Snowden clause.”
This is a leaked draft though, right? Not final? So can it change?
Small details — still subject to the “legal scrub” — are still subject to change. But the negotiators who sit around the big table and hammer out all the meaningful clauses are done, so those parts are probably fixed.
Two previous leaks of earlier drafts of the IP chapter, from previous months and years, indicate that the current shape of the text appears to be in line with earlier versions.
