The State Of The Union: President Obama, Intellectual Property And Trade

from the a-study-in-contradictions dept

Dr. Matthew Rimmer wrote up this week's "review" post, and kept on writing, submitting this rather interesting take on last week's State of the Union address which we thought many of you would enjoy.

Last week, President Barack Obama delivered his 2014 State of the Union address, discussing intellectual property, investment, and the protection of the environment.

Much like in his State of the Union Address in 2013, the President promoted his ambitious regional trade agenda – with the Trans-Pacific Partnership, and the Trans-Atlantic Trade and Investment Partnership.

The prospects of the trade deals, though, remain doubtful.

A grand coalition of civil society organizations has been formed to try to stop efforts to fast-track such trade agreements through the United States Congress.

On top of that, a large number of Democrats in the United States Congress have expressed concerns about the secretive nature of the trade agreements, and their potential impact upon labor rights, intellectual property, health, and the environment. Moreover, a number of Republicans have also been concerned about the proposed deals.

The President's State of the Union address revealed a number of contradictions and paradoxes in the position of the White House on intellectual property and trade.

A.    Intellectual Property

In his State of the Union address, President Obama spoke about a global innovation race with respect to intellectual property:

China and Europe aren't standing on the sidelines. Neither should we. We know that the nation that goes all-in on innovation today will own the global economy tomorrow. This is an edge America cannot surrender. Federally-funded research helped lead to the ideas and inventions behind Google and smartphones. That's why Congress should undo the damage done by last year's cuts to basic research so we can unleash the next great American discovery – whether it's vaccines that stay ahead of drug-resistant bacteria, or paper-thin material that's stronger than steel. And let's pass a patent reform bill that allows our businesses to stay focused on innovation, not costly, needless litigation.

There is a tension, though, between this domestic intellectual property agenda of the President, and the Intellectual Property Chapter proposed by the Trans-Pacific Partnership.

Techdirt has well-documented the problems of over-enforcement of intellectual property rights. Just last week there was much discussion about copyright trolls – with the Perfect 10 litigation. There have also been concerns expressed by Hollywood screenwriters about aggressive copyright enforcement and the impact upon an open Internet. There have been concerns about Prince's threats of copyright infringement against bootlegs. Unfortunately, President Barack Obama did not grapple with the problem of costly, needless copyright litigation in the State of Union address.

There has been much debate about how best to address the problem of patent trolls. Techdirt has. in fact, offered a range of commentary upon a number of the proferred solutions.

The Intellectual Property Chapter of the Trans-Pacific Partnership revealed by WikiLeaks is liable to promote costly, needless litigation. The Chapter is focused upon boosting the intellectual property rights of transnational companies. There is little respect paid to other public purposes served by intellectual property. The copyright section of the Chapter seeks to export features of the Sonny Bono Copyright Term Extension at the behest of Hollywood studios, such as Disney. There are prescriptive provisions on technological protection measures and electronic rights management information. The Chapter seeks to strengthen the rights of trademark holders. The Chapter also aims to provide strong protection of patents – particularly with respect to pharmaceutical drugs. Moreover, the United States has been pushing for stronger criminal sanctions with respect to the disclosure of trade secrets. The regime provides an arsenal of measures with respect to intellectual property enforcement. There is a failure in the Trans-Pacific Partnership to deal with the problem of intellectual property litigation entities – such as copyright censors; trademark bullies; and patent trolls.

If President Obama is serious about addressing the problems of over-protection of intellectual property rights, he should revise the United States proposals for the Intellectual Property Chapter of the Trans-Pacific Partnership, accordingly.

B.    Investment

In his State of the Union address, President Obama argued that "New trade partnerships with Europe and the Asia-Pacific will help [small businesses] create even more jobs." Arguably, though, the Trans-Pacific Partnership and Trans-Atlantic Free Trade Agreement are designed to boost Big Business, rather than Small Business. Indeed, there has been much concern about transnational corporations and industry associations making heavy political contributions, so that they can play a pivotal role with respect to industry advisory groups to the United States Trade Representative.

The Investment Chapter of the Trans-Pacific Partnership would appear to enable transnational corporations to challenge a wide range of public regulations which affect foreign investment. Big Tobacco has threatened to use investment clauses to challenge public health measures – such as the plain packaging of tobacco products and graphic health warnings. Agricultural biotechnology companies have been keen on deploying investment clauses against any GM food labeling measures. Big Pharma have used investment clauses to challenge drug patent laws – like those in Canada.

President Obama maintained:

Let's do more to help the entrepreneurs and small business owners who create most new jobs in America. Over the past five years, my administration has made more loans to small business owners than any other. And when ninety-eight percent of our exporters are small businesses, new trade partnerships with Europe and the Asia-Pacific will help them create more jobs. We need to work together on tools like bipartisan trade promotion authority to protect our workers, protect our environment, and open new markets to new goods stamped "Made in the USA."

Lori Wallach of Public Citizen commented: "Corporate interests were fiercely lobbying for President Obama to dedicate serious time in this speech to pushing Fast Track and the Trans-Pacific Partnership in order to try to overcome broad congressional and public opposition to both, but instead he made only a passing reference that largely repeated his past statements." She observed: "With almost no House Democratic support for Fast Track, a bloc of GOP "no" votes and public opposition making congressional phones ring off the hook, high-profile treatment of the issue was considered necessary to revive any prospect that Fast Track could be passed in this Congress." Wallach stressed: "Opposition has been growing to the massive Trans-Pacific Partnership deal. Implementing this NAFTA-on-steroids deal would undermine Obama's efforts to battle income inequality."

Professor Jane Kelsey from the University of Auckland wondered whether the speech marked a muted response by the president on trade deals. She said: "There has been enormous pressure from all sides in the lead-up to this speech, and the low-profile approach is seen as a signal that Obama thinks he cannot deliver." Kelsey noted: "Whatever happens between the US and Japan, there seems no prospect of Fast Track, and hence no chance of a deliverable deal before the end of the year - unless governments are going to gamble on Congressional approval of the final treaty." In her view, "It is time for them to stop wasting money and formally suspend the negotiations".

C.    The Environment and Climate Change

President Obama emphasized the need to address climate change in his State of the Union address:

Taken together, our energy policy is creating jobs and leading to a cleaner, safer planet. Over the past eight years, the United States has reduced our total carbon pollution more than any other nation on Earth. But we have to act with more urgency – because a changing climate is already harming western communities struggling with drought, and coastal cities dealing with floods. That's why I directed my administration to work with states, utilities, and others to set new standards on the amount of carbon pollution our power plants are allowed to dump into the air. The shift to a cleaner energy economy won't happen overnight, and it will require tough choices along the way. But the debate is settled. Climate change is a fact. And when our children's children look us in the eye and ask if we did all we could to leave them a safer, more stable world, with new sources of energy, I want us to be able to say yes, we did.

The president made the bold claim in his State of the Union address that trade agreements – such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership – would "protect our environment."

The leaked Environment Chapter of the Trans-Pacific Partnership published by WikiLeaks does little to inspire such confidence. Julian Assange, WikiLeaks' publisher, commented upon the draft text: "The fabled TPP environmental chapter turns out to be a toothless public relations exercise with no enforcement mechanism." The United States Trade Representative has engaged in greenwashing with respect to the Trans-Pacific Partnership.

The investment chapter also poses a threat to the protection of the environment, biodiversity, and climate change. Techdirt writer Glyn Moody has highlighted how gas companies have used investor-state dispute mechanisms to challenge a fracking ban in Quebec under the North American Free Trade Agreement (NAFTA).

President Obama promoted natural gas in his State of the Union address:

One of the reasons why is natural gas – if extracted safely, it's the bridge fuel that can power our economy with less of the carbon pollution that causes climate change. Businesses plan to invest almost $100 billion in new factories that use natural gas. I'll cut red tape to help states get those factories built, and this Congress can help by putting people to work building fueling stations that shift more cars and trucks from foreign oil to American natural gas.

There has been much concern that the Trans-Pacific Partnership will turn the Pacific Rim into a Gasland, because Obama will encourage fracking and promote the export of natural gas.

Joe Romm commented that President Obama had taken a "Jekyll and Hyde" approach to energy. He observed that "his continued embrace of "all of the above" energy reflects a true Jekyll and Hyde split personality."

350.org Executive Director May Boeve lamented: "President Obama says he recognizes the threat of climate change, but he sure doesn't act like it." She commented: "If he was serious, he'd reject the Keystone XL tar sands pipeline and stop promoting fossil fuels like natural gas." Boeve observed: "Fracking isn't a solution, it's a disaster for communities and the climate." 350.org founder Bill McKibben added: "If he actually took climate change seriously, he'd understand that more oil means higher temperatures–that's just how physics works."

Michael Brune, the executive director of the Sierra Club, was also disappointed by the President's address. He recognized: "The President has taken significant steps forward by committing to hold dirty power plants accountable for their toxic carbon pollution and to protect our public lands." Brune lamented, though, that Obama was contradictory, promoting renewable energy at the same time as boosting fracking for oil and gas.

Unfortunately, the sum total of the President's commitments fall short of what American families need to ensure a safe, healthy planet for our children. We can't drill or frack our way out of this problem. There is far more potential for good job creation in clean energy like solar and wind, and common sense solutions like energy efficiency. Make no mistake -- natural gas is a bridge to nowhere. If we are truly serious about fighting the climate crisis, we must look beyond an "all of the above" energy policy and replace dirty fuels with clean energy. We can't effectively act on climate and expand drilling and fracking for oil and gas at the same time.

Brune stressed: "We must walk away from boondoggles like fracked gas." He emphasized that trade deals should not undermine action on climate change: "To fight the climate crisis, we must resist the temptation to trade away American jobs and public interest policies to foreign corporations."

Filed Under: barack obama, intellectual property, international trade, state of the union, trade, ttp