Trans-Pacific Partnership

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WikiLeaks' free trade documents reveal 'drastic' Australian concessions

Secret negotiations over the Trans Pacific Partnership have been apparently revealed, and experts are concerned about what they show

The Trans Pacific Partnership proposes changes to drug patents, according to documents released by WikiLeaks. Photograph: Imaginechina/Corbis

the Guardian,

17 October, 2014

Secret negotiations over the Trans Pacific Partnership (TPP) free trade agreement have apparently been breached by another leak of material which shows Australian consumers could pay more for cancer medicines and face criminal penalties for non-commercial copyright breaches.

The publication on WikiLeaks of the intellectual property (IP) chapter comes on the eve of the latest round of negotiations in Australia between the 12 member countries, Australia, the US, Japan, Singapore, Malaysia, Canada, Mexico, Vietnam, Peru, Chile, Brunei and New Zealand.

The agreement has the capacity to affect Australian domestic law in many areas, but the secrecy of negotiations means citizens of member countries do not have full access to the Australian government’s preferred outcomes.

Two of the more contentious areas in the IP area relate to copyright and pharmaceuticals.

For example, current patent law allows drug companies a monopoly on drugs they have created for a defined period, meaning other companies are not allowed to copy and sell the drug formulations as “generics” for that period. This is considered reasonable as it rewards the company for the initial research investment, which can be costly. Once the patent period ends, cheaper drugs flood the market, bringing down the price for consumers.

Yet the text would suggest that the agreement could extend the patents. If Australia agrees to an extension of patents, the government would allow drug companies to keep the price inflated for a longer period, making the drug less affordable.

The US and Japan, the largest holders of intellectual property, have been keen to pursue stronger laws for breaches of copyright, including criminal penalties for non-commercial copyright infringements. That could cover internet downloads of television shows or music, where people do not make any money out of the product.

The leaked document suggests that opposition among the smaller countries to criminal penalties for non-commercial breaches is waning.

Matthew Rimmer, an expert in intellectual property law at the Australian National University, said the TPP could affect a range of laws, including Australia’s tobacco plain packaging laws.

“The US and Japan are pushing for stronger and longer intellectual property rights,” he said.

“A rebel alliance of Canada, New Zealand, Singapore, and other Pacific Rim countries have pushed back, arguing for recognition of public objectives for intellectual property – such as the protection of public health, access to knowledge, and competition.”

Rimmer said the TPP could also affect journalists and whistleblowers.

“The US is pushing for criminal procedures and penalties for the disclosure of trade secrets in the Trans-Pacific Partnership. Such provisions could impact upon not only corporate espionage, but the work of journalists, media organisations, information technology activists, and whistleblowers.”

Jon Edwards from Médecins Sans Frontières said the agreement appeared to

walk back safeguards in previous treaties that reserve the right of governments to get around drug-company patents on drugs if necessary “to protect public health”.

The draft preamble of the leaked chapter narrows this safeguard by identifying specific instances – “HIV/Aids, tuberculosis, malaria, and other epidemics” – where IP rights can be circumvented.

“We’re concerned that language would embolden pharmaceutical companies to challenge

government under the TPP where a country seeks a compulsory license to produce a generic medicine and the company feels it doesn’t meet that criteria because it’s not an emergency or an epidemic,” he said.

He said Australia had appeared to join with the US and Japan in backing so-called “evergreening” tactics, when pharmaceutical companies try to extend their monopoly over a drug by patenting new formulas or methods that are “not genuinely innovative in terms of their therapeutic value”.

“That might include minor changes to existing drugs which might be combining two existing drugs in the same pill, but actually it treats the same condition. [Under the draft chapter] companies would be granted a patent for that and have an extended monopoly period for that innovation,” he said.

Trish Hepworth of the Australian Digital Alliance said some of the most worrying elements of the leaked agreement related to criminalisation of breaches and 100-year copyright terms for authors. The alliance represents libraries, universities, schools, technology companies and consumers.

“We see, for example, a push to criminalise any form of recording of a movie in a movie theatre, no matter how long or whether anybody else ever sees it,” Hepworth said. “It’s ridiculous overkill that would mean kids larking around with smart phones while the previews are on will be committing criminal offences.”

Hepworth said the document showed the negotiations had advanced closer to agreement. She warned any agreement would set global norms for trade, given the member countries account 40% of the world’s gross domestic product.

“It is essential we reject the most draconian proposals on the table and support other countries who are seeking to implement flexible and positive language,” she said. “With the digital, cultural and innovative industries set to drive much of our future economic prosperity, we need our international agreements to support our national interest.”

Critics, including the consumer group Choice, have urged the Australian government to release the full text of the TPP agreement before signing up to it to ensure consumers are not adversely affected by the agreement, which would essentially trump Australian law.

Choice spokesman Matt Levey said it was not acceptable for the Australian public to be forced to rely on leaked documents when so many areas of Australian law could be affected.