1 May 2011: The Office of the US Trade Representative (USTR) has declared an intention to have all its proposals on IP protections by the commencement of the next round of TPP talks in Vietnam on June 20, spurring renewed lobbying by pharmaceutical companies to secure advantages for the industry in any US bid.
Inside US Trade reports that reports that US pharma companies are seeking a final US proposal that replicates the same 'high-standard' of the Korea-US Free Trade Agreement (KORUS) with additional protections for more recent pharmaceutical developments such as growing use of biologics (medicinal products created from biological and organic processes, rather than chemical ones).
Additionally, they are resisting any move by the US to base a proposal on the May 10, 2007 agreement. That agreement varied the original IP conditions in the Colombia, Panama and Peru US trade agreements in order to gain bipartisan support for all three to pass through Congress. The changes were designed to help ensure access to affordable medicines in developing countries. A leaked lobbying document from the Pharmaceutical Researchers and Manufacturers of America (PhRMA) indicates the May 10 agreement 'openly discriminates against the innovative pharmaceutical industry and would hinder (the) ability to compete fairly by lowering IP standards in export markets).
Lobbyists have also been outspoken about the current state of play in prospective TPP export markets, including New Zealand, which has a central state-run drug-purchasing agency (Pharmac). Pharmac is described as having a single-minded focus on 'driving down costs' that 'comes at the expense of the respect for intellectual property, transparency to the public and patient access tro better health outcomes' in the same document.
While no full details on what the US's June proposal will look like are presently available, senior USTR officials have indicated they would be open to moving away from the May 10 proposals. However, leading public health and advocacy groups are expected to use the May 10 agreement as the basis for their desired TPP proposal.
20 DECEMBER 2010: Inside US Trade reports that USTR held a meeting with US stakeholders last week, where it was indicated that US negotiators would likely draft a proposed text covering all aspects on an intellectual property rights chapter at the fifth round of talks in Chile in February.
To date, the US has tabled proposals for general provisions and trademarks of an IP chapter of TPP. The February talks would see the US table sections on copyright, patents, and IP rights enforcement.
A blog on Knowledge Economy International, representatives of which were present at the stakeholder meeting, indicates that the US intends that unlike ACTA (in ACTA's current form), the TPP will have a dispute resolution process where parties may be subject to fines and penalties for breach of the agreement. KEI were also told the Obama Administration would not consider anything which lowered IPR norms as part of the TPP - in effect, IP laws and rights can only be harmonised upwards in TPP. KEI has some good examples of how this departs from executive policy under both the Clinton and Bush Administrations on its site.
20 DECEMBER 2010: The New Zealand media published a series of cables at the weekend indicating covert pressure on pharmaceutical reform by US lobbies, as well as serious doubts by NZ's own trade negotiators about the possible advantages of any US-NZ free trade agreement.
Writing in the Sunday Star-Times, Nicky Hager reports that chief trade negotiator Mark Sinclair privately told a visiting US State Dept official that New Zealand had little to gain from a free-trade agreement. This differs significantly from the accounts of the potential FTA benefits given by Prime Minister John Key and Trade Minister Tim Groser.
According to the cable, detailing a February 2010 meeting, Sinclair told US Deputy Assistant Frankie Reed there was a public perception a US free-trade agreement would be an 'El Dorado' for NZ's commercial sector, but that 'the reality is different' and that NZ must 'manage expectations' about the benefits of such an agreement.
Neither Sinclair nor the NZ government has deigned to comment on the content of the cable, which also warned that negotiations would prove 'gut-wrenching' for New Zealand and criticised member states for 'hanging on to 'little fantasies' about what is acheivable'.
For the US's part, a December 2004 cable reports that the American drug industry has been 'trying in vain to persuade the New Zealand government to change its restrictive pricing policies on pharmaceuticals' and that their new tactic is to reach out directly to NZ consumers to foster demands for 'cutting-edge drugs not covered by government subsidy'. More surprisingly, that cable goes on to say that pharmaceutical companies saw direct opposition in the then-Labour government's Cabinet, particularly in former Primer Minister Helen Clark. It goes on to note that "the industry may be paying a price for its unsuccessful effort in 1990 to unseat Clark, who at the time was health minister".
The full-text cables on Mark Sinclair's meeting with Frankie Reed can be read here and here. An earlier cable in which Groser expresses strong desire for the US to come to the table on TPP is here, warns about 'anti-US' factions of the opposition Labour Party, and indicates his government will handle the public aspect of negotiations in a 'mature' way can be found here.
Professor Jane Kelsey has argued that the leaks indicate comprehensively that the government sees 'no tangible benefits' from a NZ-US free trade deal, and that the government should concede as such to the public. Her press release following these reports can be read below the break.
The TPP Digest is on the lookout for further Cablegate leaks relating to TPP, with all and any actual or prospective members, and will publish them as they become available.
DECEMBER 5 2010:
The December 3 edition of Inside US Trade reports that a draft paper which has now been finalized and submitted to the Office of the US Trade Representative by a coalition of US businesses is urging US negotiators to actively shape IP regimes in other TPP countries in order to protect US geographical indicators (GI’s). Apart from protecting certain GI’s already existing in the US, the coalition wants the policy to make certain products produced in ‘significant quantities’ outside a proposed protected region (for example, ‘feta’ cheese) ineligible for GI protection. This is intended to help current US manufacturers and producers and save them the loss or cost of relabelling and rebranding.
As well, the paper requests that US negotiators replicate the IP provisions of the as-yet unsigned US-Korea trade agreement as a baseline to a text, especially in the area of patents and copyrights. It also asks for punitive protections extending beyond those in the current version of the Anti-Counterfeiting Trade Agreement (ACTA), such as a requirement that TPP states outlaw filming in theatres.
The paper, written by the Pharmaceutical Research and Manufacturers of America (PhRMA), the US Chamber of Commerce, and the Motion Picture Association of America (MPAA), also suggests that the TPP go beyond the US-Korea FTA in terms of software patents. These are traditionally a contentious area of IP rights, with critics arguing that patenting software effectively grants property rights over formulas and algorithims (ie: knowledge itself, rather than new physical inventions or processes).
The paper also contains implicit criticism of New Zealand’s public pharmaceutical purchaser, Pharmac. At one point, it urges drafters to deal with regulatory barriers which ‘have the effect of delaying or restricting access to innovative medicines to patients’. NZ is also cited as a TPP country that has yet to fully implement requirements of the World Intellectual Property Organisation (WIPO)’s Copyright Treaty and Performances and Phonograms Treaty.
13 SEPTEMBER 2010: Public Citizen, along with 19 other US activist groups, has signed off an open letter to US Trade Representative Ron Kirk asking that any negotiated TPP restrict intellectual property provisions to levels no higher than those set under the TRIPS agreement.
It asks instead that the US build upon the more progressive IP exemptions allowed for in the US-Peru Trade Promotion Agreement, which made patent term extensions and patent linkage voluntary while placing limits on the term and scope of data exclusivity.
It also asks that accession or adherence to ACTA (the Anti-Counterfeiting Trade Agreement) not be a requirement of a TPP. It is believed ACTA could threaten access to several generic medicines. New Zealand, the US, Singapore and Australia are presently negotiating parties in that agreement. The letter can be read here.
17 JUNE 2010: Australian unions, health and environment groups have joined forces to warn of the potential consequences for the Australian Pharmaceutical Benefits Scheme (PBS) and for the regulation of tobacco advertising if the TPP goes through. AFTINET say that submissions from US pharmaceutical companies to the USTR are seeking changes that could raise the whole sale price of medicines, and that the introduction of an investor-dispute mechanism to a settled agreement would mean tobacco companies could challenge moves that retrict access to or visibility of their products. Their full press release follows below the break. A launch was held at noon on Wednesday for an accompanying pamphet outside the NSW Parliament House, featuring speeches from investor-state dispute academic Dr Kyla Tienharra, as well as Greenpeace and the Australian Manufacturing Workers Union.
26 MARCH 2010 - La Republica and IPS report that a former Peruvian Deputy Minister of Labour, Julio Gamero, has warned that the large number of trade agreeements Peru has signed in the past year, as well as the impending negotiations in the TPP, may be having a negative impact on labour rights.
Gamero warned IPS that over the past three years, the number of collective bargaining agreements, health and safety inspections, and unionised members of the workforce has fallen dramatically. He is critical of the government's response, saying that it was not until a US delegation on labour issues visited Lima that a liaison office between government and unions was created. Coordinator for the Peruvian Network for Globalisation with Equity (RedGE), Alejandra Alayza, says it is essential to guarantee labour rights in any further agreements so that workers may share in the benefits.
The IPS article, which follows below, also looks at the effect of tariff-lowering on peasant farmers, as well as the TPA with the United States's impact on indigenous forestry rights and intellectual property.
24 APRIL 2010: New Zealand's National government have indicated they will not scrap Pharmac, the Pharmaceutical Management Agency of New Zealand, under any free-trade deal. Pharmac is the New Zealand government agency that decides on behalf of the nation's District Health Boards which medicines are to be subsidised. The NZ Herald has identified it as one of two likely stumbling blocks (the other being dairy) in the completion of a free-trade agreement between NZ and the US.
Trade Minister Tim Groser has described Pharmac as "an outstandingly successful public institution" which he had seen no need to make concessions on when he negotiated with US on the Trade Ministry's behalf ten years ago, while Health Minister Tony Ryall has called predictions by NZ pharmaceutical lobby group the Researched Medicines Association that Pharmac will face pressure for reform under any TPP "hypothetical and speculative". The USTR 'hit list' on New Zealand's trade barriers for 2010 notes US industry concerns about Pharmac's 'lack of transparency and predictability' and an 'onerous' approval process for their products.
New Zealand economic commentator and editor of interest.co.nz Bernard Hickey has written in the New Zealand Herald arguing against a NZ-US FTA. Central to his article's concerns are the possibility of an agreement where dairy is excluded, the opening-up of the NZ Pharmac system to competition, and the possibility of more stringent IP laws (New Zealand recently considered controversial reforms that would have bought it closer to the existing US framework).
Hickey's editorial comes as US and NZ dairy groups continue to dispute the effect of a FTA allowing NZ dairy farmers access into the US market. A Stuff article about the US National Milk Producers Federation's allegations against Fonterra is below the break.
MARCH 15, 2010: Barack Obama is due to meet with his Australian counterpart, Kevin Rudd, on March 26. The whirlwind stop in Canberra is likely to cover the by-then complete negotiation rounds in Melbourne for the TPP agreement. While Obama is quick to hail the 'model alliance' between the US and Australia, serious doubts are rising in Rudd's capital about the lack of consultation and analysis going ahead into the negotiations, as an excellently-argued Canberra Times op-ed by Professor Thomas Faunce expresses today...
MARCH 14, 2010 - With TPP Negotiations set to commence in Melbourne on March 15, over 30 community and union groups have combined to make an appeal to the Australian government and Trade Minister. They ask that any completed agreement safeguard the Pharmaceutical Benefits Scheme, Australian local content in media, regulation of GE food, regulation of foreign investment and industry policies that support local employment. The joint statement follows below the break.