TPP's corporate power grab clearer, but opposition building

Tuesday, December 10, 2013

The usual boilerplate announcements that “significant progress” was achieved in the just-concluded round of Trans-Pacific Partnership (TPP) negotiations cannot hide that public opposition is growing. The United States seems to be having difficulty bullying its negotiating partners.

The TPP, being negotiated in secret between the US, Australia, Brunei, Chile, Canada, Malaysia, Mexico, New Zealand, Peru, Singapore, the US and Vietnam. These countries account for 40$ of the world economy. Japan has recently joined talks.

The growing opposition does not mean that the TPP is dead — far from it. But the Obama administration's insistence that the text will be completed by the end of the year is wishful thinking.

Opposition

That US Congress might not play its assigned role of rubber-stamping the deal was strongly signaled last month when 151 Democratic Party members of the House of Representatives and more than two dozen Republicans signed letters opposing “fast-track” trade authority.

Many did so due to sustained grassroots activism.

US activists believe that difficulties gettign the deal approved in the US would make some of the other negotiating governments, particularly developing countries, more hesitant to approve the TPP in the face of their own internal opposition.

Malaysia has already said it would not sign any deal this year. On the other hand, Australian Prime Minister Tony Abbott is on record as favouring rapid approval of trade agreements.

“Fast-track” is a mechanism whereby the US Congress waives its right to debate and amend. Instead, it limits itself to a straight yes or no vote in a limited time frame. This is a manoeuvre by US presidents to make it easier to have unpopular trade agreements approved.

Activists have anticipated since early October that a bill for fast-track authority could be introduced at any moment. That such a bill has been delayed is a sign that mounting opposition to the TPP within the US has introduced an element of caution into the Obama administration’s thinking.

Strong opposition to draconian US proposals by Australia, New Zealand and other countries has certainly played a role in slowing down the negotiations. The divergence in positions became clear in November when WikiLeaks published the full text of the TPP chapter on intellectual property.

Corporate power-grab

Despite being billed as a “free trade” agreement, this chapter, like most of the TPP, has nothing to do with trade. Rather, it — and, in particular, the US negotiating positions — are the dreams of the most powerful multi-national corporations.

It is telling that corporate lobbyists have access to the text, but parliamentarians do not.

Sustained and organised mass opposition is the only thing that will stop this extraordinary power grab that will fatally undermine any semblance of democracy.

If the TPP were to be implemented, labour safeguards, safety rules, environmental regulations and measures to rein in financial speculation would be struck down because a multinational corporation’s profits might be affected. Corporations would be able to bypass national laws and courts when it is in a dispute with a government. Instead, it can have its dispute adjudicated by a closed tribunal controlled by its lawyers.

The TPP intellectual property chapter published by WikiLeaks — one of about two dozen chapters — is crammed with corporate giveaways in its 96 pages.

In the published chapter, Japan is the country most often in alignment with US negotiating position, although frequently the US is opposed by all other countries.

There are several sections that broaden what is patentable subject matter —if implemented, the TPP would make patents:
• “Available for any new uses or methods of using a known product.”
• Require patents to be granted if the patent “involves an inventive step,” even if there is no new use for it.
• Allowable for living organisms, including plants and animals.

What these proposals would mean is that a name-brand pharmaceutical company, for example, would be able to claim a new use for high-priced medicines just before the patent was due to expire. In that way, it could extend the patent and block a far less expensive generic equivalent from becoming available.

Under the North American Free Trade Agreement, the US pharmaceutical company Eli Lilly sued Canada for US$500 million because the Supreme Court of Canada upheld the invalidation of an Eli Lilly patent.

Canada’s ability to enforce its own laws would be undermined by the TPP, according to a Public Citizen analysis: “Canada’s decisions are based in its ‘promise doctrine,’ a patent rule which requires patents claiming a future usefulness to demonstrate or soundly predict that usefulness at the time of filing.

“The United States has proposed a rule for the Trans-Pacific Partnership negotiations that could undermine Canada’s promise doctrine. Whether purposeful or not, this would support Big Pharma’s plans to transform Canadian practice and even, seemingly, some of the goals of Lilly’s outrageous suit.”

Companies such as Eli Lilly would be in a stronger position to overturn any law they don’t like.

The TPP’s intellectual property chapter would also attack rules such as the Indian Patent Act that protect access to affordable medicines worldwide. It would require extensions of patents on the demand of a corporation if it deems the period of time required to approve its patent “unreasonable.”

Doctors Without Borders said: “The leak confirms our worst fears — the US is continuing its attempts to impose an unprecedented package of new trade rules that would keep affordable generic medicines out of the hands of millions of people.”

Return of SOPA

The defeat of the Stop Online Piracy Act (SOPA) and the Anti-Counterfeiting Trade Agreement (ACTA) — thinly veiled attempts at internet censorship stopped by popular pressure — would be reversed under the TPP.

A proposal by the US and Australia would require internet service providers to police their users. ISPs would be required to cut off internet access, block content and actively monitor usage to avoid liability if a copyright holder claims one of its copyrights is being infringed.

Monica Horten, a visiting Fellow at the London School of Economics writing on her Iptegrity.com website, summarizes the TPP’s dangers to the free flow of information: “[I]t is a toxic potion that would force the Internet Service Providers (ISPs) to police their networks, and turns current law on its head …

“Where it concerns the Internet and digital content, much of the TPP intellectual property chapter looks like a cut-and-paste from ACTA. Certainly, it brings in similar secondary liability and criminal measures that were in ACTA.

“However, there are specific new proposals that give more reasons for concern … Within the Internet section, is a USA/Australian proposal that contains the core desires of Hollywood and the Motion Picture Association.”

Canada, back by several countries, is seeking less onerous restrictions. University of Ottawa law professor Michael Geist said: “From a Canadian perspective, the U.S. demands would require an overhaul of Canadian copyright law and potential changes to privacy law.

“For many other TPP countries, the issue is creating a clear divide, with the U.S. conditioning ISP safe harbours on subscriber termination and content blocking, while the Canadian model favours greater flexibility in establishing systems that create incentives to address alleged infringements online.”

Will Canadian negotiators hold firm or capitulate? Given the harsh policies of Prime Minister Stephen Harper — the George W. Bush of Canada — much activism will be required to stop SOPA getting in through the back door.

At the behest of corporations such as Monsanto, which seeks to control the world’s food supply, labeling of genetically modified organisms (GMO) would be illegal.

Specific TPP language on GMOs and GMO labeling has not yet surfaced. But because the goal of Monsanto and other US manufacturers of GMO foods is to remove restrictions against GMOs, this is likely to be an area where US negotiators push hard.

More secret than usual

This latest round of TPP talks was even more secret than usual. Negotiators did not bother this time with the pretense of meeting with civil-society groups.

A potential turn for the worse is possible with the election of Abbott, who may reverse some of the previous positions Canberra had taken against certain US proposals.

For example, preceding Australian governments opposed investor-state disputes being adjudicated by secret tribunals controlled by corporate lawyers. It is unknown if the Abbott government will reverse that position.

The ABC's Lateline reported on October 10 that Abbott is in favour of “fast-tracking” the TPP and other trade agreements. This is a worrying sign, as the US is pushing hard for anti-democratic provisions such as investor-state disputes to be adjudicated in the secret tribunals.

These mechanisms are in force in the North America Free Trade Agreement and many bi-lateral trade agreements. NAFTA, for example, uses a tribunal that is an arm of the World Bank in which only two of the more than 200 cases it has heard have been open to the public — this might become the forum that would adjudicate disputes under the TPP.

Agreements like TPP have little to do with trade and much to do with imposing a corporate dictatorship. There is no time to waste.


From GLW issue 992