TPP after the filtration of Wikileaks

by Digital Rights LAC on December 21, 2013


The only real transparency mechanism that citizens have had throughout years of TPP negotiations has been Wikileaks. In this context, considered unacceptable under any democratic view, we can find out about the hard intellectual property standards that the U.S. wants to demand from its commercial partners.

By Claudio Ruiz*, Digital Rights NGOs

One of the aspects that clearly demonstrates the problems of the Trans Pacific Partnership (TPP) is that the negotiations have been conducted behind closed doors since the very beginning. It seems, in principle, that secrecy would make sense when negotiating sensitive issues for developing countries, as it could provide a negotiation margin, allowing for better agreements to be reached. But this could only be true in an ideal world, where there would be democratic participation mechanisms operating in parallel and where all stakeholders would have equal opportunities in contributing to an open debate. But in reality, civil society does not have the same opportunities of participating and this becomes even more serious when the negotiations are secret, as is the case of TPP .

The TPP should encourage us to think about the concepts of transparency and participation. For example, in some of the negotiations, mechanisms for the inclusion of the participants were established, but they are far from any principles of accountability, converting them into processes that resemble a black box of a plane. The latter conditions, of putting forth principles of transparency and participation, do nothing more than to maintain the status quo of keeping matters hidden away, which is favorable for business lobbies.

With all this false idea of transparency, it is rather ironic to see how Wikileaks ends up being responsible for delivering meaningful information about the regulatory future of our countries. And today, in light of the intellectual property documentation that we have access to about the treaty, we can say with more certainty that the outlook is dark .

Intellectual property in the TPP

What the TPP promotes puts in check the possibilities of regulatory changes in developing countries, especially in terms of thinking about how we want to build intellectual property and the role of the state for future generations. The TPP not only rewrites the existing free trade treaties, but also the current international agreements and their rather unflexibile regulations. In short, it brutally closes doors on rethinking the future of intellectual property, due to the pressure of past industries.

The TPP is not just another international agreement. TPP promoters see it as a key agreement for the future, even referring to it as a “new generation” treaty, but no one can say with certainty what it is actually about, and even less so what the tangible benefits are for developing economies.

The filtration of the intellectual property chapter shows that this “new generation” concept implies an aggressive strategy of the U.S. government to lift all possible standards of protection, through language that forces partner countries to change their existing legislation, even if recently enacted by Congress, limiting the role of the state and even forcing them to adopt existing international treaties. It is in this sense that some U.S. congressmen have opposed the idea of “legislating diplomatically”, thus evading the mechanisms of representative democracies .

To an extent, it is true that the TPP is considered a “new generation” agreement, as countries are forced to legislate norms that would be impossible for them to approve in Congress. Lawmaking through FTAs is certainly a new way of legislating.

A recent press article which was published a few weeks ago, mentioned that the main problem is that the TPP would make an eventual copyright reform impossible. While such a thing would be difficult, even without the existence of the TPP, the principle of automatic protection and excessive 50 year protection term, after the author’s death, are already mentioned in the Berne Convention. The issue makes sense when analyzing the failures of many of the existing provisions in TPP in other international agreements, as occurs within the World Intellectual Property Organization (WIPO).

The future of TPP

In the United States, the future of the TPP has been questioned due to the lack of support for the fast track procedure in Congress, despite pressure from President Obama, which would allow the negotiations to progress and the U.S. Congress to approve or reject the proposals at the closure of the negotiations.

In Chile the situation is similar, even without it being necessary to have this authorization. But not having congressional approval does not necessarily imply a robust revision of the legitimacy of the TPP’s final text, since it can only be approved or rejected and can not get to discuss the merits of the issues presented for approval.
On the one hand, it is a difficult scenario to think that the Chilean Congress can overturn more than three years of negotiations and expenditure of public resources, but is also unlikely that a developing country will close its doors on a trade agreement that includes the United States. Surely, the final text will include benefits for the country in one of the many areas that the TPP touches upon, but should be evaluated in light of the many serious detrimental aspects to existing rights of citizens only in the intellectual property chapter .

One of the strongest arguments that has not been properly answered is why Chile is so determined to go forth with the TPP, if it already has free trade agreements in force with the TPP countries. In fact, the free trade agreement with the United States is about to reach its tenth year of operation and there appear to be no reasons to renegotiate any of its terms.

If the TPP is approved, its terms will shape, via the international route, the possibilities for Chile to decide on how its regulations ought to be on sensitive issues for the economy and the lives of its citizens, under the shield of promoting free trade. Without going any further, year after year, the representative of U.S. trade takes personal care in reminding the Chilean government about how disappointed they are with the way the FTA has been implemented by the nation, placing it on the priority watchlist of countries that are not respectful of intellectual property around the world. The TPP will not solve the problem, but rather worsen it.

The current state of negotiations at the time of writing is uncertain. However, it is known that many of the chapters are closed by technical negotiators and the most problematic ones, such as intellectual property, are expected to be sealed by political negotiators.

The TPP has transparency standards of a bygone era and establishes serious obstacles for countries to decide autonomously on regulatory mechanisms for the future. Perhaps, in addition to the reflection on the secrecy of the negotiations, it may make us think about how we may want to build the commercial diplomacy of the future .

*Claudio Ruiz is Executive Director of Digital Rights NGOs