KEI notes on the 13th round of TPPA negotiations in San Diego, CA

The 13th round of negotiations for the Trans-Pacific Partnership Agreement (TPPA) took place in San Diego, CA, USA from 2-10 July 2012.

Notes on Intellectual Property

The intellectual property negotiations during the 13th round focused on copyright and general provisions. USTR’s announcement and press release that it would table text on copyright limitations and exceptions during the round. USTR claimed that “For the first time in any U.S. trade agreement, the United States is proposing a new provision, consistent with the internationally-recognized “3-step test,” that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.”

Although this proposal is apparently supported by CCIA, civil society organizations were less enthusiastic about the announcement. A joint statement by the Electronic Frontier Foundation (EFF), Knowledge Ecology International (KEI), Public Citizen (PC) and Public Knowledge (PK) raised concerns that “While we are supportive of efforts to protect and expand the use of copyright exemptions in certain areas, such as to protect education and facilitate the development of new Internet services, a provision in the TPPA that includes a restrictive 3-step step may work in the opposite direction of what is needed.” KEI previously raised concerns about inclusion of three-step test language, including in our criticism of a prior proposal by CCIA on limitations and exceptions and in a letter sent to Barbara Weisel on copyright concerns just prior to the start of the negotiating round.

Of course, with USTR refusing to release the text of this proposal, it is difficult to comment on the exact consequences or outcomes that will result if the US proposal is accepted. As we understand it, though, the text repeats the three-step test and places a restriction on the limitations and exceptions that a party can enact, requiring compliance with the three-step test. Though it seems USTR makes specific reference to reference to “criticism, comment, news reporting, teaching, scholarship, and research” in its press release, we note that a number of existing limitations and exceptions are not subject to the three-step test. A KEI blog, including history on the three-step test and its inclusion in other agreements is available here. Additional comments from KEI regarding the three-step test and copyright limitations and exceptions are forthcoming.

Stakeholder Presentations/Tables

The week began with stakeholder tables and presentations on the first day of negotiations, 2 July 2010. After the last round of negotiations in Dallas in May where only tables were permitted, a number of organizations and academics requested that space for presentations be re-instated. Although USTR did accommodate this request, tables and presentations ran simultaneously making it difficult for negotiators to attend both. In addition, three rooms held simultaneous presentations with two separate rooms for intellectual property requiring IP negotiators to split up or choose between presentations. The Electronic Frontier Foundation and Public Knowledge, for example, presented at the same time. Also affecting turnout was the fact that because the stakeholder engagement fell on the first day of negotiations, a number of negotiators had not yet arrived.

Stakeholder Briefing

picture of TPPA Chief Negotiators, July 3, 2012
(From left to right: Chief negotiators from Australia, Singapore, Peru, Chile, United States, Malaysia, Brunei, New Zealand and Vietnam)

The stakeholder briefing, traditionally held during second half of negotiations, took place on day 2. Because of the stakeholder engagement, negotiations did not begin until the afternoon the previous day and not all chapters had started negotiations, leaving little upon which the chief negotiators to brief. In fact, US chief negotiator, Barbara Weisel, acknowledged at the start of the briefing that there was not much to report given that it was only day 2. She noted that USTR made a decision to front-load stakeholder events in order to avoid the July 4 holiday in the US. After noting that some chapters are close to conclusion while the more controversial chapters have a ways to go, Weisel opened up the briefing to questions.

With respect to copyright limitations and exceptions, Weisel stated that the US has heard from stakeholders on all sides of the issue and would table text on limitations and exceptions during the week in an effort to seek appropriate balance. She seemed to indicate that USTR would make a further announcement regarding the proposal and accept comments.

On pharmaceuticals and generics, Chile noted that a wide variety of views and proposals have been expressed. The chief negotiator stated that the concerns of each country should be taken into account and that, from the Chilean perspective, it will be important to achieve a balanced system and defend their citizens. The US followed up by stating that everyone agrees that innovation and generics are important, but because of the controversial nature of these issues negotiators are still working through the competing objectives. Weisel commented that negotiations on pharmaceuticals had not yet advanced to the point where there is an understanding of the final outcome.

The Australian chief negotiator specifically mentioned that issues surounding intellectual property, pharmaceuticals and public health are very controversial and will therefore take longer to find solutions. The Chilean chief negotiator made similar comments about the complexity of the intellectual property chapter, noting that it is “very long” and “like a book” in length. He stated that no important decisions had been made with regard to the intellectual property chapter, though some small details have been addressed.

When asked a question about resolving trade deficits, the chief negotiators from New Zealand, Vietnam and Chile all stated that they were not viewing the balance between each country, but rather were looking at broad issues and at opening markets.

When asked about the recent announcements that Canada and Mexico have been invited to join the TPPA, the New Zealand chief negotiator stated that the nine current negotiating partners felt confident that these two countries were committed to the levels set forth in the proposed agreement and could join without interruption in the momentum. He noted that these countries would be able to join the negotiations after existing TPPA partners complete any necessary domestic procedures, presumably a reference to the 90-day waiting period of the now-expired Trade Promotion Authority in the US.

As in all previous rounds, when a question on transparency was raised, the response was that there would be no release of the text. Weisel asserted that negotiations cannot be done if they release the text and that all negotiations–whether domestic legislation or negotiations of an agreement–they cannot “put your playbook on the table” or else the negotiation will not conclude.

With respect to the leak of the investment chapter, the lead negotiator from this chapter from the US stated that they do not comment on the authenticity of leaked text and that any leak is a significant concern. He pointed to the model bilateral investment treaty (BIT) and previous trade agreements as evidence of the US position which, in his view, does not go beyond customary international law.

Peru’s chief negotiator noted that climate change was an issue of particular concern to Peru, because of evidence that Peru would be one of the countries most affected by climate change in the future.

Other Information

USTR announced dates and location (but not the venue) for the next round of negotiations. The next round will be the third consecutive US-hosted round and will take place from 6-15 September in Leesburg, VA, USA.

On Friday, 6 July, AFL-CIO and other public interest organizations co-hosted a reception for negotiators, press and stakeholders. Congressman Bob Filner, San Diego Port Commissioner Scott Peters and Secretary-Treasurer/CEO of San Diego and Imperial Counties of the AFL-CIO Lorena Gonzales spoke briefly at the event.

Toward the end of the negotiating round, USTR sent letters notifying Congress of Mexico and Canada’s inclusion in the TPPA negotiations. As noted earlier, fast-track authority has expired, but USTR announced that it is complying with the mandates set forth under such authority. As a result, there is a 90 day waiting period–beginning on 9 July for Mexico and 10 July for Canada–during which neither country may take part in the negotiations or see the negotiating text. This means that although USTR announced the inclusion of Mexico and Canada in June, these two countries were still not permitted to attend the 13th round of negotiations, nor will they be permitted to participate in the 14th round in September. The first negotiating round Mexico and Canada will be allowed to participate in will be the 15th round, expected to take place in December.