USTR hearing on Mexico joining the TPP

In August, KEI provided comments to USTR regarding the entry of Mexico and Canada into the TPP negotiations. ( Today is the public hearing. Right now there are about 35 people in the audience, and a panel of 9 persons from various agencies hearing the testimonies. There are only 10 witnesses in today’s hearing, and only three, KEI, PhRMA and IIPA, are speaking on IPR issues.

We are given 5 minutes for direct testimony, and 10 minutes for questions. In addition to our written response to the federal register notice, below are my notes from my oral comments.

Oral Testimony regarding Mexico Joining the TPP

September 21, 2012.
Knowledge Ecology International (KEI)


By adding Mexico, a country of 114 million persons and a GDP of $1.5 trillion, USTR continues to build the TPP into a major global norm for intellectual property rights and other topics as diverse as drug pricing, the protection of the environment the health and safety in our food supply, and standards for workers’ rights. It is deeply offensive to many people inside and outside of the United States that these legally binding and durable norms are being fashioned in secret. That is the mistake that USTR pursued in ACTA, and there the secrecy contributed greatly to the rejection of the agreement by the European Parliament, and to its damaged credibility and legitimacy in other fora.

There may be parts of this large and complex agreement for which an argument can be made for secrecy. But certainly such arguments cannot be made for the every chapter of the agreement. The contempt for the public is all the more clear when USTR carries out an extensive system of briefing corporate interests on the nature of the proposals it makes in the negotiations, and openly embraces a double standard for access that can best be understood by the public when looking at the amount of money that various parties dump into political campaigns, in part to obtain this type of preferred access. According to USTR, the Advisory board for intellectual property rights is chaired by Richard Kjeldgaard, the Deputy Vice President, International Intellectual Property, PhRMA. That pretty much sums up how this process is perceived. The fact that the Obama Administration cares more about PhRMA than the public as regards access to information is a great disappointment.

Persons with disabilities

The United States has 45 million persons who speak and read Spanish. Mexico is by far the largest Spanish speaking country in the world, with a population of 114 million persons. Mexico and the United States are both quite active in negotiations at WIPO to expand access to copyrighted materials for persons with disabilities. The U.S. And Mexico should have provisions in the agreement that require the two countries to permit imports and exports of accessible works for persons with disabilities, made under copyright exceptions.

Research and Development

Both the U.S. and Mexico are concerned about Chagas disease, a disease that is spreading, including new infections in the South West of the United States. According to the CDC, Chagas disease is endemic throughout much of Mexico, Central America, and South America where an estimated 8 to 11 million people are infected, including more than 300,000 persons living in the United States. R&D for Chagas disease has been almost non-existent because the persons who become infected are largely poor and uninsured. The TPP should create a protocol for R&D on priority illnesses, and the US should propose that all western hemisphere members of the TPP, including Mexico, support R&D on Chagas disease.

Copyright Exceptions

The U.S. needs to take a hard look at the Berne Convention exceptions, and to explain how those exceptions relate to U.S. fair use law, and to understand that the standards for the Berne exceptions do not in general depend upon a three step test, a topic that was discussed during the adoption of the 1967 revisions to Article 9.2 of the Berne in Stockholm. Given the huge economic importance of fair use to the U.S. Economy, USTR should get this right.

On other topics, I refer to our written submission

In Eric Schwartz of IIPA’s testimony, he claims that the 3-step test applies to all exceptions, including those like the quotation or news of the day exceptions, which are mandatory. When State asks him a question about the TPP text, Scwartz says he has only seen the leaked text. Exchange illustrates the ackward nature of asking for comments on a secret text.

Jay Taylor of PhRMA was late. After he testified, Taylor and Commerce had exchanges focusing on the issues of linkage of patent status and test data exclusivity. Taylor said that NAFTA requires exclusive rights in biologics test data, and was highly critical of Mexico on the linkage issue.

After the hearing, USTR issued this press release. I was taken with this quote from the press release, given the negotiating text is still secret: “USTR is committed to transparency in trade negotiations” said Ambassador Kirk:

Washington, D.C. – The Office of the United States Trade Representative (USTR) today held a public hearing on matters related to Mexico’s participation in the negotiations of the Trans-Pacific Partnership (TPP). Ten individuals representing industry associations, non-governmental organizations, and organized labor offered testimony to officials from USTR and other U.S. government agencies.

“USTR is committed to transparency in trade negotiations,” said Ambassador Kirk. “Today’s hearing is a good example of our engagement with interested stakeholders and members of the public. As the TPP negotiations progress, we will continue to ensure that all interested parties have an opportunity to express their views.”

Counselor and Assistant U.S. Trade Representative for Trade Policy and Economics Doug Bell presided over the proceedings. Barbara Weisel, Assistant U.S. Trade Representative for Southeast Asia and the Pacific, and John Melle, Assistant U.S. Trade Representative for the Americas, also participated in the hearing. The testimony presented today, as well as all comments received in response to USTR’s Federal Register notice, are available at, docket number USTR-2012-0014.