KEI notes from Eighth Round of TPPA Negotiations

Krista Cox wrote these notes on September 13, 2011, reporting on the eighth round of negotiations for the Trans-Pacific Partnership Agreement (TPPA).

The round began on 6 September 2011 in Chicago, IL and continued through 15 September. Official stakeholder engagement was limited to 9-11 September, with a reception on the 9th, a "platform" for presentations on the 10th, and a 45 minute briefing to stakeholders on the 11th. Notably, during this round, USTR tabled the remainder of its proposals for the IP chapter, including controversial provisions relating to data protection for pharmaceutical products, patent linkage and patent term extensions. We believe that all substantive IP proposals from the parties have now been tabled.

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Chief TPPA negotiators for Chicago round, September 11, 2011. Photo by Krista Cox.

Stakeholder Platform
On Saturday, 10 September, a broad range of stakeholders, including industry, NGOs and academics, were given the opportunity to present. However, because of the length of this negotiating round and consecutive days of negotiations, some negotiators indicated that they would not attend the presentations. For the negotiators that did attend, because the platforms were split across three rooms with simultaneous presentations occurring, they had to choose which presentations to attend. Although most of the IP presentations occurred in the same room, there were some on medicines that occurred simultaneously in another room.

I presented on areas where USTR's proposal for the IP chapter could be inconsistent with current U.S. law and impede current legislative areas to reform areas of known concern.

Professor of Law from Duke University, James Boyle, gave an excellent and entertaining presentation on the need for evidence-based proposals in the TPPA, such as the US proposal to extend copyright to life plus seventy years. He also noted that IP protection is not always needed to provide incentives to "invent." For example, he noted, business methods were created long before patents because greed and fear provided sufficient motivation.

It was unfortunate that Boyle only received 10 minutes to speak when the majority of presenters were allotted twenty minutes. KEI ceded half its time slot to Boyle after being told by USTR (when we requested a time slot for Jamie Boyle a couple days after platform registration had closed) that the presentations would end at 6:20 p.m. and that slotting additional platforms after that would be too late. USTR suggested that we allocate some of our time to Boyle, which we did. However, after receiving the schedule shortly before the negotiating round began, three presentations were slated for 6:20 p.m. or later, and given my prior communication with USTR, I presume that these were late registrants. The three presenters included: BIO, Nucor Corporation and the U.S. Chamber of Commerce. Additionally, Ed Gresser from the Alliance for Healthcare Competitiveness did not present, but instead was replaced by a presenter from Johnson & Johnson. I find it extremely unfortunate that a full time slot could not be allocated to an academic (and that our own time slot was shortened) given that representatives from the private, corporate sector were given full time slots late in the day.

Some other notable presenters on IP or access to medicines included: Electronic Frontier Foundation (EFF), Public Knowledge (PK), Free Software Foundation, HAI Peru, Public Citzen, the Motion Pictures Association of America (MPAA), Internet NZ, PhRMA, American University's Program on Information Justice and Intellectual Property (PIJIP), the Center for Policy Analysis on Trade and Health, the American Medical Association and Sharon Treat, a Maine state representative.

Stakeholder Briefing
At the stakeholder briefing on 11 September, Chief Negotiator for the US, Barbara Weisel, began with a statement that "the courtship is over, the bloom is off the rose, now is the time for the work that will make the marriage between our countries work" and indicated that negotiations had moved into the more difficult sections, covering the more sensitive issues. However, she remained optimistic and stated that the partners were committed to moving to the APEC summit in Honolulu in November. When pressed, she admitted that she does not know what the November document or statement will look like, and that the negotiators will have to take stock after the next round of negotiations in Lima in October.

With regard to substantive issues, Weisel indicated that the US would table the remainder of its intellectual property text during the Chicago round of negotiations, but that some other chapters, such as labor, still had outstanding text. Peru also stated that it would table text in a future round, specifically noting that horizontal issues would be presented in the next round of negotiations in Lima.

When specifically asked about USTR's remaining IP text and the May 10, 2007 agreement, Weisel said that she would not comment on the US proposal. She stated that a USTR white paper on medicines would be publicly released the following day. Additionally, when specifically pressed about TRIPS-plus proposals, Weisel claimed that her office did not think of proposals in terms of being TRIPS-plus or not TRIPS-plus. Responding to a question on whether the US has presented any evidence to support its TRIPS-plus proposals, Weisel said that the parties don't necessarily discuss "philosophy" or engage in academic debates during the negotiations.

The New Zealand chief negotiator commented that text on state owned enterprises (SOEs) had not yet been tabled. Earlier in the week, KEI learned that USTR did have text ready to present on SOEs, but after calling in the U.S. Chamber of Commerce for a debriefing on 7 September, the U.S. Chamber reportedly asked USTR not to table the text because they were unhappy with the precedence the text could set, indicating yet another example where trade policy is dictated by the private sector.

Transparency, or the lack thereof, continues to be a deep concern for NGOs and academics. At the Vietnam round of negotiations, the Vietnamese Chief Negotiator indicated that each country could determine for itself whether to release the text. Since then, several individuals have requested the text from their home country, but have been denied. In Chile, the refusal to release the text was accompanied by a letter stating that all countries had signed an agreement at the outset of negotiations agreeing to keep negotiating text confidential. We note that the leaked copy of the US IP Chapter references guideline "1.4(b)" in classifying the document. When asked whether the countries could release the text of the memorandum of understanding signed between all nine trading partners, Weisel said that it was an issue that would have to be discussed.

With respect to the release of the actual text, Weisel stated that release would not happen. She asserted that USTR had been more transparent and actively engaged with its stakeholders than in any other negotiation. Despite repeated stakeholder comments that the process in other negotiating fora have been much more transparent and open, Weisel maintained that the TPPA negotiations have been transparent.

The chief negotiator from Malaysia said that he was not sure that there was any text in the TPPA for the protection of indigenous people.

Intellectual Property Concerns
On 12 September 2011, USTR tabled the remainder of its intellectual property chapter text, including the controversial provisions on data protection for pharmaceutical products, patent linkage and patent term extensions. In conjunction with its new text, USTR also distributed a public white paper on access to medicines. Although we had been led to believe that this white paper would defend USTR's positions on its newly tabled text, the paper contains little substance and does not describe the text of these provisions.

As noted above, Weisel refused to comment on the substance of the proposals. However, based on the information contained in the USTR white paper and discussions with USTR officials including Stan McCoy, data protection for pharmaceutical products, patent linkage and patent term extensions are all on the table as being included as protections that would be provided where companies register their drug within a certain time "window." McCoy called the USTR proposal an "enhancement" from the May 10, 2007 deal, claiming that the new proposal would incentivize innovators to register their products in developing countries and that patients in these countries would then have access to drugs they would not have in the past. However, as noted by KEI and other groups, USTR's proposal is really something that benefits big pharma rather than actually improving access to affordable medicines in developing countries.

Additionally, it has been reported that differential treatment of countries has not been proposed for IP and the US proposal would apply to all TPPA trading partners. Because of the late tabling of the text (just one day prior to the conclusion of the IP negotiations for this round), it does not seem that the new USTR proposals would be discussed during the Chicago round as many negotiators wanted time to carefully analyze the new text.

As a whole, it appears that there is growing and vocal opposition to USTR's aggressive IP positions. It seems like the four countries that already have free trade agreements with the US--Australia, Chile, Peru and Singapore--may be unwilling to go beyond that which is already contained in their existing FTAs. Some other countries who do not currently have FTAs with the U.S., such as New Zealand and Vietnam, have reportedly also been vocal in opposing the U.S. positions. It seems as though Chile and New Zealand may have moved to a common position (they had each tabled separate IP chapter proposals previously) and their position may be joined by other countries. It seems as though some are still waiting to see what Peru's current positions are given somewhat recent election of President Humala (who had campaigned against the US-Peru FTA).

Other Points of Interest

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USTR head Ron Kirk and Chicago Mayor Rahm Emanuel at a September 9 TPPA stakeholder event. Photo by Krista Cox.

Ambassador Ron Kirk and current Mayor of Chicago (and former White House Chief of Staff to President Obama) Rahm Emmanuel both attended the reception on 9 September and provided some opening remarks. Ambassador Kirk seemed quite confident that a framework would be announced at the November APEC meeting. The reception was sponsored by a number of companies including Microsoft.

A number of demonstrations and civil society activities occurred during the first week of negotiations. On Labor Day hundreds of labor activists gathered in Grant Park to protest the TPPA, including Ben and Jerry from Ben & Jerry's Ice Cream. They announced the collection of 20,000 postcards protesting the TPPA, some of which were personally delivered by Arthur Stamoulis of Citizens Trade Campaign to Ambassador Kirk at the reception. On Wednesday, AIDS activists joined together to "close" the entrance of the Hilton hotel, where negotiations occurred, declaring it a crime scene because of the deadly impact the agreement could have as a result of the aggressive IP provisions that will make it more difficult for generic drugs to enter the market. Jennifer Flynn from HealthGAP hand-delivered the recently released Malaysian Declaration on TPPA and Access to Medicines to Barbara Weisel at the stakeholder briefing.

Finally, a few notes on future rounds. The Peruvian Chief Negotiator stated that the next round of negotiations will also be an extended round. The dates are now set for 19-28 October. A Peruvian IP negotiator stated that the second week of negotiations will be held at the Marriott hotel in Lima, Peru. The APEC summit in Honolulu in November will not be a negotiating round for the TPPA. It does sound like there will be an "abbreviated" round of negotiations following APEC that will take place in Malaysia in December, with rumors that the next round after that will be in Australia in January. Dates and cities for the Malaysian and Australian rounds have yet to be confirmed.