The Trans-Pacific Partnership: Closed Negotiations Against the Open Knowledge Economy

The global movements for access to medicines and knowledge (including textbooks, legal materials, and scientific research, plus internet freedom) have made tremendous advances in the first years of this century.

Consider for example the HIV/AIDS treatment revolution. Generic competition has driven down global prices of basic AIDS drugs by 99 percent, enabling governments and donors to scale up their response to the pandemic. Community activists facilitated this transformation, which has saved millions of lives.

But the power of the pharmaceutical and content industries frequently threatens the advance of such progressive access policies. Corporations use provisions in free trade agreements (FTAs), among other platforms, to limit competition and access measures.

For many, trade negotiations might call to mind tariff disputes and subjects some would consider sleep-inducing. But FTAs have become a means by which multinational corporations transform countries' laws, including those affecting health, internet use, and access to educational materials, without the public scrutiny that typically attends legislative proposals. Today's FTAs provide ways to skirt and short-change democratic process.

Right now in New Zealand, closed negotiations continue for the Trans-Pacific Partnership (TPP), a proposed free trade agreement among eleven countries* and growing. The United States has ambitions to eventually apply the terms of the TPP to all members of the Asia-Pacific Economic Cooperation forum (APEC), twenty-one countries comprising forty percent of the world’s population. The U.S. agenda, which covers a multitude of issues in twenty-nine chapters, includes support for behind-the-border deregulation, harmonization and measures that favor investors and corporations over public interests.

The draft texts are secret. But a few chapters have come to light through leaks. Among them is the highly controversial intellectual property (IP) text, one of the most aggressive of any trade or other multilateral agreement. U.S. proposals for the IP chapter could compromise access to medicines and learning materials and limit internet speech throughout the Asia-Pacific region.

For example, a U.S. proposal to extend copyright terms would keep creative works out of the public domain for an additional twenty years, restricting our rights to access and reinterpret culture. Others would oblige or induce internet service providers to police user activity and block content which in many cases does not, in fact, infringe copyright—an overbroad restraint on speech. The leaked TPP draft also includes language suggesting that copyright infringement without commercial motive would still be defined as piracy, and potentially subject to criminal penalties. 

Access to textbooks and other learning materials is a problem in every part of the world, due to price barriers (which is especially challenging in poorer countries) and sometimes unavailability (a regular problem in small countries). Students and families can remedy this problem by shopping on the world market, a process known as parallel importation. The TPP seeks to ban parallel importation, limiting access to educational tools. 

The U.S. proposals for patents and test data would make pharmaceutical monopolies stronger, broader, and longer. Such proposals limit the generic competition that helps make medicines affordable, and which have expanded access and saved lives in many countries. Public interest groups have been dismayed to see the Obama administration roll back even the modest access protections eventually achieved during the Bush administration. 

U.S. TPP proposals would lower patentability standards and make it easier to patent minor variations of older, known medicines. They would expand exclusive controls over clinical trial data. The U.S. has proposed eliminating pre-grant opposition, an important safeguard against patent abuse, and supports even broader patent “linkage” provisions than in past FTAs, linking patent status to medicine registration and potentially facilitating patent abuse.

These terms would not only inhibit access in individual TPP countries, they would also constrain potential and emerging sources of medicines, such as Australia, Malaysia, and Vietnam. Applied regionally, the TPP would limit the economies of scale necessary for the generics industry to keep prices low. A separate set of provisions attacks government purchasing and medicine formularies, such as New Zealand's Pharmac.

Drug companies are demanding that the U.S. export a new and highly controversial rule on monopoly protections for biotech medicines via the TPP. This twelve-year “data exclusivity” period restricts access to needed treatments for cancer, heart disease, and more. It would be cruel to impose this rule on the many people suffering from treatable conditions in the Asia-Pacific region who cannot afford the extraordinary monopoly prices for biotech medicines, which are often tens of thousands of dollars or higher. A biotech data exclusivity provision would also lock American consumers into a bad law at home. The Federal Trade Commission found no need for the twelve-year or any other data exclusivity period for biologics, noting that patent protection already provides innovation incentives. Lawmakers in the U.S. could reduce the period of years (the White House supports seven rather than twelve), saving Americans billions of dollars and helping make medicines affordable. But if the U.S. Trade Representative forces a twelve-year period into the TPP, Americans could lose the freedom to change their own law.

But there is good news. Many TPP countries—indeed, all of them, to varying degrees—are resisting these demands, assisted by a civil society network spanning the Pacific. And in some cases, countries are advancing their own proposals which present alternate visions, reflecting an evolving understanding of the knowledge economy. 

Now is the time to engage. The U.S. continues to press for an aggressive negotiating calendar and high-level political deals, in which countries will be asked to trade away public interests in exchange for greater access to the U.S. market. People in TPP-negotiating countries should know what they are being asked to surrender before the deals are made. The negotiating parties must release the draft texts. 

Access to knowledge advocates have organized and challenged the U.S. position in the TPP for the past two years. The range and scope of the TPP is a danger, but the negotiations also offer a platform. The TPP provides an organizing opportunity to link social movements, from tobacco control (trademarks vs. plain packaging) to human rights (Amnesty International recently weighed in critical of the TPP IP provisions), and to communicate a 21st century vision of an open knowledge economy: one that builds on the examples of the internet, network theory, and the access to knowledge and medicine movements.                                                               

  * TPP negotiating countries include Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, the United States, and Vietnam, with Canada and Mexico joining negotiations in December. Japan and Thailand have signalled that they are considering asking to join.