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Do TPP’s Intellectual Property Rights Threaten or Protect Innovation? (Part I)

Posted March 13, 2015

Restrictive changes to the current intellectual property rights (IPR) regime are often cited as cause for alarm by critics of the Trans-Pacific Partnership (TPP). Opponents of the 12-nation trade deal such as the Electronic Frontier Foundation, a highly vocal and influential non-profit civil liberties group with a vast grassroots network of supporters, claim that the deal’s IP provisions “would have extensive negative ramifications for users’ freedom of speech, right to privacy and due process, and hinder peoples’ abilities to innovate.”

Based on leaked draft texts of the agreement, EFF warns that it would “restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector.” However, from a review of the organization’s entirely speculative and incredibly vague policy statement on this matter, it is difficult to ascertain exactly how any of the TPP’s proposed IP provisions would negatively affect the technology sector or actually impede innovation, as it assertively claims.

Another of TPP’s prominent foes in this field, Knowledge Ecology International (KEI), a non-profit group that “searches for better outcomes, including new solutions, to the management of knowledge resources,” has analyzed the leaked IP chapter and deems it “anti-consumer and anti-freedom” in nature, expressing particular concern over how it would restrict access to medicines and negatively impact various diagnostic, therapeutic, and surgical methods. They worry that it would “lower global standards for obtaining patents, make it easier to file patents in developing countries, extend the term of patents beyond 20 years, and create exclusive rights to rely upon test data as evidence that drugs are safe and effective.” That is not a miquote, by the way, nor did you misread it. Measures such as the closing of loopholes and the granting of more patents with longer effective terms is exactly what many NGOs are most concerned about, fearing such things will make drugs more expensive and less accessible.

Tom Giovanetti, president of the Institute for Policy Innovation (IPI), a public policy research organization based in Dallas, writing about this issue in 2013 when the draft texts were leaked, provided quite a different interpretation of what he described as the “breathless hyperventilating” of groups like EFF and KEI. “Those who want to shut down liberalized trade are using intellectual property as their vanguard issue, because it’s a great lever for them. After all, the average citizen doesn’t care about intellectual property, and when they’re confronted with IP protection, it’s probably most often in a context that inconveniences them. So there’s no broad public activism for intellectual property protection,” he said. Giovanetti’s theory (which we won’t take up space repeating here, but strongly encourage you to read) regarding what he believes to be the mendacious strategy and demagoguery of NGOs and other anti-TPP activists, appears to have a great deal of credible veracity.

“It’s somewhat bemusing to actually dig into the leaked chapter and see what the great fuss is all about,” Giovanetti wrote. “Once we get to the actual text, it’s pretty interesting to find that the leaked text reveals NOT that the U.S is pushing for extreme positions, ‘secretly trying to implement SOPA,’ ‘secretly trying to implement ACTA,’ or that the TPP will ‘break the Internet.’” What the U.S. is seeking through TPP, Giovanetti maintains is merely what already exists in U.S. law (or indeed, even less than it requires in some cases). The administration is “simply asking its TPP partners to adopt IP policies that are an approximation of U.S. law and similar to existing U.S. trade agreements,” he says, suggesting instead that “opposition from groups like EFF and KEI simply reflect policy disagreements with existing U.S. law.”