KEI Notes From the Eleventh Round of TPPA negotiations in Melbourne, Australia

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The eleventh round of negotiations for the Trans-Pacific Partnership Agreement (TPPA) took place in Melbourne, Australia from 1-9 March 2012. Stakeholders were given the opportunity to present at the stakeholder platform on 4 March, attend a reception on 6 March and the stakeholder briefing on 7 March.

We note our continued objection to the lack of transparency in the TPPA negotiations. Some negotiators have suggested that they believe the TPPA to be transparent because the rounds permit stakeholder engagement through a stakeholder forum where individuals and organizations can give short presentations. However, without the actual negotiating text, it is very difficult to determine what is actually in the agreement and what presentations may be most effective. Relying on leaks as sources of information has not proven to be a steady or effective mechanism, with the last comprehensive leak of the IP chapter coming one year ago. Such secrecy delegitimizes the TPPA and undermines the US democratic process.

Intellectual Property
During this round, negotiations on copyright took place from 1-3 March. Intellectual property negotiations resumed from 5-9 March on patents, including the controversial "access window" provisions tabled by the United States during the eighth round of negotiations which took place in Chicago, IL in September 2011.

It seems that the copyright negotiations focused largely on some of the more controversial provisions, including in particular the text regarding technological protection measures (TPM) and anticircumvention measures. It should be noted that not all TPPA negotiating parties are members of the WCT and WPPT and therefore do not currently have international obligations with respect to TPMs. Parallel importation and the US-proposed language on temporary reproductions have also been controversial.

Other than concerns regarding plain packaging, the language of the trademarks section of the intellectual property chapter has not been particularly contentious, at least in comparison to the copyright and patents sections. We understand the intellectual property text to be heavily bracketed with respect to copyright and patents.

Patents were discussed in the latter half of the round and the provisions related to the "access window" were thoroughly and substantively discussed for what may be the first time since the US tabled this text. It does not sound like the US is receiving much, if any, support for these provisions as drafted. It seems as though the focus of the discussion on patents centered around the controversial text tabled by the US in September.

Stakeholder Forum
The stakeholder forum this round was heavily dominated by NGOs, academics and the generic pharmaceutical industry. In the intellectual property room, the morning session focused on copyright with many presenters discussing the impacts of the TPPA on the internet and technology. The morning session concluded with a panel on access to medicines.

The afternoon session began with eight representatives of the generic pharmaceutical industry spoke giving strong statements in opposition to the US "access window" text, opposing in particular the provisions related to patent term extensions, patent linkage, and exclusive rights over test data. These representatives noted that the US proposal would hinder access to affordable generic medicines and many of them noted that the May 10, 2007 agreement was a much better model for promoting access to medicines. One presenter objected to the September text, noting that a system of patent linkage resulted in "compulsory litigation." Generics firms represented included the Generic Medicines Industry Association of Australia (GMiA), Mylan, Hospira Inc., Asociacion Industrial de Laboratorios Farmaceuticos (ASILFA), Hovid Bhl, Generic Pharmaceutical Association of America, Alphapharm and MFJ International. The speakers were from at least four of the TPPA countries. The remainder of the afternoon included panels on pharmaceutical pricing and NGOs on access to medicines.

Stakeholder Briefing
The Australian chief negotiator opened the briefing with a statement of the chapters which had made progress during the round. Intellectual Property was not mentioned as one of these chapters, though market access, services, rules of origin and capacity building were amongst those specifically mentioned. He stated that there were more than 20 negotiating groups.

As usual, very few substantive questions were answered. Some procedural questions also went unanswered.

The first question came in the form of request for greater transparency, including the release of the text, in order to permit the general public to be part of the process. The Australian chief negotiator stated that the stakeholder forum provides the primary way for stakeholders to participate and it is common practice not to release texts during negotiations of free trade agreements. He suggested that releasing the text would not be feasible because "nothing is agreed until it is agreed."

A later question regarding the release of the text came when one stakeholder asked if the TPPA negotiating parties would consider a release after a composite text had been reached as is done at the WTO. The Australian chief negotiator repeated that in his view, the answer had already been clearly stated, that this is not the WTO and they would not release the text.

When asked whether all countries had finished tabling their IP text and whether the US specifically had tabled its text (marked as "placeholder" text in the prior leaks) on biologics, the length of the access window, internet retransmission and copyright limitations and exceptions, the Australian negotiator immediately responded that they would not release text. When pressed to answer simply whether specific text had been tabled or not, Barbara Weisel, US chief negotiator, did not clearly answer the question but seemed to indicate that such text had not been tabled yet. She noted that USTR is still consulting with stakeholders regarding some provisions, presumably on biologics and the length of the access window.

Weisel also refused to confirm the location of the next full round of negotiations, widely rumored to take place in mid-May in Dallas, Texas. She noted that when the venue is confirmed, the location will be announced. Citing problems during the last US-hosted round that was supposed to take place in San Francisco but was then moved to Chicago in September 2011, she noted her reluctance to announce the location prior to confirmation that space and accommodations are available. Based on her answer, though, it does seem to confirm that the next round will take place somewhere in the US in May.

The chief negotiators also did not confirm the next round of intersessional meetings and would not even name the chapters to be discussed during the April intersessional, choosing instead to say that the such decisions could not be made until after the current round ended.

When asked whether the TPPA would be concluded this year, a statement was made that steady progress had been made and that they were confident that they could meet the objectives set at the leaders meeting at APEC in November.

Of particular note, one stakeholder asked whether the three countries who have formally expressed interest in joining the TPPA--Canada, Japan and Mexico--would be allowed to participate in negotiations or whether these countries would only be given the option of signing the final agreement. Weisel stated that these countries would not be permitted to participate in the negotiation of the text because the process was already too far along and it would be too difficult to allow new countries to propose text, make changes and go over their views on the text.

Although we have frequently heard that Australia's negotiating position, at least with respect to the intellectual property chapter, was that it would go no further than AUSFTA. However, during the stakeholder briefing, the Australian chief negotiator did not provide any assurances or confirmation on this point. Instead, he said only that they were not "fundamentally" driven to changing its intellectual property system, but would have to wait and see because they enter into the negotiations in good faith.

A question regarding special and differential treatment for countries of differing levels of development initially went ignored, at least with respect to the intellectual property. Toward the end of the briefing, the question was repeated with respect to services and it was noted that everyone is concerned about development, and that these concerns are note limited to the services chapter)

Other Points of Interest
An intersessional on intellectual property will take place in Santiago, Chile in April, though there will be no formal stakeholder engagement as was the case in Los Angeles in January. There have been rumors that intersessionals will also take place for the labor and environmental chapters, both of which also held intersessionals in San Diego in January. The location of these intersessionals has not been confirmed.

As noted above, the next full round of negotiations is likely to occur in the US in May, with Dallas noted as a possible site.

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Photo of Occupy Melbourne protesters courtesy of Jane Kelsey

Occupy Melbourne participated in several demonstrations and protests during this round. Outside the reception, a number of Occupy Melbourne protesters stood outside the venue (some wearing Guy Fawkes masks) and protested the secrecy of the trade agreement. These protesters asked nearly every person who entered the venue whether he or she had the text and whether he or she would release it.