TPP Leaks Shows US Stands Firm That Companies Should Be Free To Abuse Patents & Copyrights

from the go-home-ustr,-you're-drunk dept

Wed, Aug 5th 2015 7:39am — Mike Masnick

Last week, as you might have heard, negotiators on the Trans Pacific Partnership (TPP) agreement gathered in Maui to try to finalize the agreement. Many believed that negotiators would more or less finish things up in that meeting. Earlier reports had suggested that everyone was "weeks away" from finishing, and many had said that the only thing holding back a final agreement was fast track authority (officially "trade promotion authority") from the US government to make sure that the USTR could negotiate an agreement without further interference from Congress. And, as you'll recall, Congress voted in favor of fast track after a long fight.

However, a funny thing happened in Maui: they didn't reach a final agreement. And it doesn't sound like negotiators are really that close either -- leading many to wonder if the TPP may be running out of time.

Either way, the good folks over at KEI have now started releasing a leaked copy of the "intellectual property chapter" as it stood on May 11th (i.e., the latest draft prior to last week's meeting). The IP chapter had leaked in the past, but only an older version. KEI called out how the US's proposals in the TPP are horrible:

The May 11, 2015, text includes country positions, and reveals extensive disagreements among parties, as well as the isolation of the United States as the country that continues to be the most aggressive supporter of expanded intellectual property rights for drug companies, publishers and other companies.

The proposals contained in the TPP will harm consumers and in some cases block innovation. In countless ways, the Obama Administration has sought to expand and extend drug monopolies and raise drug prices. The astonishing collection of proposals pandering to big drug companies make more difficult the task of ensuring access to drugs for the treatment of cancer and other diseases and conditions.

The widely reported dispute over the number of years of protection for biologic drug test data is only one of dozens of measures that significantly expand the power of big drug companies to charge high prices. Taken together these provisions will take the public down a road of more and more rationing of medicines, and less and less equality of access. It could have and still can be different. Rather than focusing on more intellectual property rights for drug companies, and a death-inducing spiral of higher prices and access barriers, the trade agreement could seek new norms to expand the funding of medical R&D as a public good, an area where the United States has an admirable track record, such as the public funding of research at the NIH and other federal agencies. Many people reading the provisions released today will appreciate how misguided and wrong are the USTR’s values and negotiating objectives.

Looking through the documents, you can see some real ridiculous and aggressive positions by the US on intellectual property. In particular, the US seems to push back against any attempt by other negotiating countries to allow for the punishment of those who abuse patents or copyrights. Every time the issue comes up, many other countries are on board, but the US (and sometimes Japan) is against. The discussion below is about the parts of the IP chapter that KEI released yesterday. Just as I was finishing up this post, it released the other sections as well, but we'll save those for another post.

For example, there is one proposal put forth by Australia, arguing that countries should be able to "cancel, revoke or nullfy" a patent if "the patent is used in a manner determined to be anti-competitive, or abusive, in a judicial or administrative proceeding...." This actually seems like a pretty good idea. And, basically all of the countries agree... except for the US and Japan.

Similarly, the US and Japan again appear to be in favor of patent trolling later in the document, opposing a provision that appears to allow countries to pass anti-trolling legislation:

Those are on the patent side. Well, how about copyright? Here, even Japan supports a plan that would allow courts to order those who abuse takedown provisions to pay up against those they unfairly targeted. But the US opposes it:

One other thing that caught my eye. Throughout the enforcement part, other countries repeatedly propose the use of the word "predominantly" when it comes to things like destroying equipment used in the creation of infringing works. That is, there are proposals like "judicial authorities shall have the authority to order the forfeiture or destruction of materials and implements that have been predominantly used in the creation of pirated goods or counterfeit trademark goods." The US repeatedly asks for the word "predominantly" to be removed from such sentences. In other words, while other countries recognize that you shouldn't just go around destroying computers that maybe incidentally were used to infringe, the US wants to retain such a right.

I'm sure more questions will be raised as people have more time to go through these documents, but for now, it appears that the US is still pushing for extremist copyright and patent policies and working hard to protect those who deliberately abuse such tools. It's fairly incredible how the USTR wants to deliberately support those who admittedly abuse those laws for anti-competitive purposes. Wouldn't you think the USTR should be encouraging blocking such abuses? I guess when your main advisors have a long history of abusing the laws, you don't think such abuse is that bad...

Section B Cooperation TPP IP Text 11May2015 (PDF)Section B Cooperation TPP IP Text 11May2015 (Text)

Section E PatentsUndisclosed Data TK TTP IP Text 11May2015 (PDF)Section E PatentsUndisclosed Data TK TTP IP Text 11May2015 (Text)

Section H 1 11 of Enforcement TPP IPChapter 11May2015 (PDF)Section H 1 11 of Enforcement TPP IPChapter 11May2015 (Text)

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Filed Under: abuse, copyright, enforcement, ip chapter, leak, patents, tpp, us

21 Comments

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Mason Wheeler (profile), 5 Aug 2015 @ 8:04am

Make corporate abuse worse? YES WE CAN!
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- Anonymous Coward, 5 Aug 2015 @ 11:38am
  
  Re:
  you mean... WE DAMN SURE WILL!!!
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Anonymous Coward, 5 Aug 2015 @ 8:18am

IP is all the US has left, that is why it is so important
The US hardly manufacturers anything anymore. The only thing we have left is IP. We still lead the way, IMHO, in technology. So US corporations are doing everything they can to ensure "protection" of their ideas whatever that means. So it is no surprise they are pushing so hard.
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- Anonymous Anonymous Coward, 5 Aug 2015 @ 8:31am
  
  Re: IP is all the US has left, that is why it is so important
  Companies are doing everything they can except being first to market, continuing to develop through listening to the market, being different and better, and offshoring labor because the stock market will punish them for not sequestering evey penny of potential profit for short term investors.
  [ link to this | view in chronology ]
- Mike Masnick (profile), 5 Aug 2015 @ 8:34am
  
  Re: IP is all the US has left, that is why it is so important
  The US hardly manufacturers anything anymore.
  
  Except that's not true. We actually manufacture more stuff than ever before.
  
  http://spiritofcontradiction.eu/wp-content/uploads/2013/02/IndustrialProduction-1967-2012.jpg
  
  http://spiritofcontradiction.eu/rowan-duffy/2013/02/03/the-legend-of-us-manufacturing-decline
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  - Anonymous Coward, 5 Aug 2015 @ 9:31am
    
    Re: Re: IP is all the US has left, that is why it is so important
    Ok, I am wrong on that, which is good to know. But I think the point still stands that we produce a ton of IP as well and companies think they have to "protect" it. I am not defending that position; just pointing out that I think that is why they are pushing this agreement so hard. What the real answer should be I don't know.
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  - d, 5 Aug 2015 @ 7:45pm
    
    Re: Re: IP is all the US has left, that is why it is so important
    Except that less people are employed in manufacturing
    
    https://www.google.co.nz/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF- 8#q=manufacturing%20jobs%20us%20graph
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- Seegras (profile), 6 Aug 2015 @ 8:07am
  
  Re: IP is all the US has left, that is why it is so important
  The only thing we have left is IP.
  
  No, you've got even more IP Protection.
  
  Just about all works of art produced until 1978 should be in the public domain, but aren't. So you're inflating the amount of works artificially with extending law.
  
  And all software patents are actually illegally granted, because software is math. So you're also inflating the amount of patents by granting patents on math, obvious things and 4000 year old technology (slide to unlock..).
  
  And judging by TPP, TTIP etc., your biggest export also seems to be protectionist laws.
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Anonymous Coward, 5 Aug 2015 @ 8:39am

but i'll bet a dime to a pinch of that it wont count to companies elsewhere, USA only, in other words!!

i'm curious as to what the US is going to threaten other countries with if it isn't allowed to take over the world, cause sure as God made 'little green apples', that's the bottom line!!
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- tqk (profile), 5 Aug 2015 @ 11:34am
  
  Re:
  i'm curious as to what the US is going to threaten other countries with if it isn't allowed to take over the world ...
  
  Invading is expensive and messy. If they can get the same result by throwing a few lawyers at them instead, it would be prudent to do so.
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Anonymous Coward, 5 Aug 2015 @ 9:48am

"However, a funny thing happened in Maui: they didn't reach a final agreement. And it doesn't sound like negotiators are really that close either -- leading many to wonder if the TPP may be running out of time. "

Lets not just assume it won't pass. Corporations have a sneaky way of getting what they want even if it means making the public think it won't pass and, last minute, getting it passed.
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Anonymous Coward, 5 Aug 2015 @ 9:49am

You could summarise ttp as big american companys want more power,
so will be against any attempt to attack patents,
even patents or patent trolls who abuse patents to attack
startups ,small companys or consumers .
The trend seems to be to more products made in the usa,
but in factorys heavily automated ,with few human workers .
Big companys like ibm can use patents to reduce competition from eu ,asian companys so
its important to get software patents worldwide.
whether some patents are bad,
they simply dont care .
lets bring other countrys down with us to the lowest level
of us laws .
TtP is really bad for consumer rights and poor countrys who cannot afford expensive medicine .
the EU maybe better for startups right now ,
as we have no software patents ,
but each country has slightly different laws on ip .
And different markets for music , tv ,media .
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David, 5 Aug 2015 @ 10:02am

Mischaracterization
I'm sure more questions will be raised as people have more time to go through these documents, but for now, it appears that the US is still pushing for extremist copyright and patent policies and working hard to protect those who deliberately abuse such tools.

Uh, this is not about protecting those players but rather about making the abuse profitable. This works best for players with monopoly status who are considered default copyright holders barring counterevidence. Any laws or measures trying to enact any kind of criminal or financial responsibility for false positives are definitely not what the U.S. delegations have been bribed for.
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Anonymous Coward, 5 Aug 2015 @ 10:53am

..."judicial authorities shall have the authority to order the forfeiture or destruction of materials and implements that have been predominantly used in the creation of pirated goods or counterfeit trademark goods." The US repeatedly asks for the word "predominantly" to be removed from such sentences...

The article latched onto the destruction part but overlooked the forfeiture part. I'd bet the US wants to expand civil forfeitures given the judicial slapdowns that have recently occurred.
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- JoeCool (profile), 5 Aug 2015 @ 11:51am
  
  Re:
  True, but they still need to get rid of that pesky "predominantly" for either case, destroying or stealing.
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Anonymous Coward, 5 Aug 2015 @ 1:08pm

This is a policy of us department of state,
and DOJ
I read it on another site ,
they call it legal warfare,get eu other countrys to adopt the most restictive ip,copyright ,drug ,software patent law .
without us laws on free speech or fair use to protect the consumer.
Disney makes a lot of films based on public domain storys,
frozen is based on folk tales about the ice queen .
The public domain is like open source ,it can be used by
anyone ,
to create new media which can be free or sold as a
commercial product .
IF any country wants to prosper in the age of new media ,software ,music etc
ignoring the value of public domain material is a very
bad public policy .
No one creates anything completely new ,or original
every artist takes inspiration from others .
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- Seegras (profile), 6 Aug 2015 @ 8:09am
  
  Re:
  they call it legal warfare,get eu other countrys to adopt the most restictive ip,copyright ,drug ,software patent law.
  
  It's called "mercantilism".
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Anonymous Coward, 5 Aug 2015 @ 1:28pm

Don't lengthen copyright
The US is probably trying to push life + 90 years for copyright on the entire world. That's one of the reasons I'm against the TPP.

Current copyright terms are not a limited period of time. I think the appropriate absolute upper limit for copyright is 70 years (14 years plus 4 14-year non-automatically renewable terms).

That strikes a good balance. If it's worth it to the copyright holder, they will renew it. Otherwise it falls into the public domain.

The (best) alternative would just be to reset copyright to the original 28 years.
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Rekrul, 5 Aug 2015 @ 1:38pm

Gee, what happened to all the "outrage" over the US reclassifying Malaysia as a tier 2 country with respect to humans rights in order to be able to use fast track to pass the TPP? I was so sure that would turn into a major incident...

Of course in the end, it really doesn't matter if the TPP passes or not because even if it doesn't, those same patent and copyright provisions will be in the next treaty, and the one after that and so on, until eventually they get one passed.
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Zonker, 5 Aug 2015 @ 4:53pm

Since the US is so pro-democracy, this should mean that all these sensible proposals backed by the majority of the countries involved will be passed against the minority votes of the US and sometimes Japan. Right? The US would never defy the popular vote as that would be downright undemocratic.

[tries to keep a straight face]
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Soichi Ogou, 6 Aug 2015 @ 8:09pm

no need to invalidate a patent to stop patent abuse in Japan
When Japanese court finds that a plaintiff abuses its patent right, the court does not need to invalidate the patent, but simply dismisses the plaintiff's claim based on a provision of the Civil Code, Article 1 (3), that no abuse of rights is permitted. In fact, the court applied the provision in a patent litigation in which the plaintiff's petition for temporal injunction was deemed as abusive. This is one reason why the patent troll is not a big problem in Japan. Another reason is because our court tends to award only a fraction of damage claimed by the plaintiff, considering the contribution of the patented technology in the lost profit of the plaintiff's sales by the competition with the defendant's product. So, a non-practicing entity cannot make money in Japanese patent system!
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