Trans-Pacific Partnership (TPP) AgreementWhat is the Trans-Pacific Partnership Agreement (TPP)? The Trans-Pacific Partnership (TPP) is a secretive, multi-nation trade agreement that threatens to extend restrictive intellectual property laws across the globe. The nine nations currently negotiating the TPP are the U.S., Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, and Brunei Darussalam. Expected to be finalized in November 2011, the TPP will contain a chapter on Intellectual Property (copyright, trademarks, patents and perhaps geographical indications) that will have a broad impact on citizens rights, the future of the Internets global infrastructure, and innovation across the world. A leaked version of the February 2011 draft U.S. TPP Intellectual Property Rights Chapter indicatesH H

that U.S. negotiators are pushing for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement .H H

The TPP will rewrite the global rules on IP enforcement. All signatory countries will be required to conform their domestic laws and policies to the provisions of the copyright law (such as the Digital Millennium Copyright Act s broad ban onH H

Agreement. In the U.S. this is likely to further entrench controversial aspects of U.S. circumventing digital locks and frequently disproprotionate statutory damages for copyright infringement) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector. The recently leaked U.S. IP chapter also includes provisions that appear to go beyond current U.S. law. This raises significant concerns for citizens due process, privacy and freedom of expression rights. The leaked U.S. IP chapter includes many detailed requirements that are more restrictive than current international standards, and would require significant to:

changes to other countries copyright laws. These include obligations for countries

Treat temporary reproductions of copyrighted works without copyright holders' authorization as copyright infringement. This was discussed but rejected at the intergovernmental diplomatic conference that created two key

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1996 international copyright treaties, the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.

Ban parallel importation of genuine goods acquired from other countries without the authorization of copyright owners. Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of IP. Life + 70 years for works either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse). created by individuals, and following the U.S.- Oman Free Trade Agreement,

Adopt laws banning circumvention of digital locks (technological protectionH

measures or TPMs) that mirror the U.S. Digital Millennium Copyright ActH

(DMCA) and treat violation of the TPM provisions as a separate offence, even

when no copyright infringement is involved. This would require countries like New Zealand to completely rewrite its innovative 2008 copyright law. It would also override Australias carefully-crafted 2007 technological protection measure regime exclusions for region-coding on movies on DVDs,

videogames, and players, and for embedded software in devices that restrict access to goods and services for the device -- a thoughtful effort by Australian policy makers to avoid the pitfalls experienced with the U.S. digital locks provisions. In the U.S., business competitors have used the DMCA to try to block printer cartridge refill services, competing garage door openers, and to lock mobile phones to particular network providers.

Adopt criminal sanctions for copyright infringement that is done without a commercial motivation, based on the provisions of the 1997 U.S. No Electronic Theft Act.

Adopt the U.S. DMCA Internet Intermediaries copyright safe harbor regime in its entirety. This would require Chile to rewrite its forward-looking 2010H

copyright law that currently provides for a judicial notice and takedownH

regime, which provides greater protection to Internet users expression and privacy than the DMCAs copyright safe harbor regime. In short, countries would have to abandon any efforts to learn from the mistakes of the U.S. experience over the last 12 years, and adopt many of the most controversial aspects of U.S. copyright law in their entirety. At the same time, the

U.S. IP chapter does not export the limitations and exceptions in the U.S. copyright

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regime like fair use, which have enabled freedom of expression and technological innovation to flourish in the U.S. It includes only a placeholder for exceptions and ability of national governments to set laws and policies to meet their domestic priorities. limitations. This raises serious concerns about other countries sovereignty and the

Non-Transparent and On The Fast Track Despite the broad scope and far-reaching implications of the TPP, negotiations for the agreement have taken place behind closed doors and outside of the checks and balances that operate at traditional multilateral treaty-making organizations such as the World Intellectual Property Organization and the World Trade Organization. Like ACTA, the TPP is being negotiated rapidly with little transparency. Since 2009 when United States Trade Representative Ron Kirk notified the U.S. Congress that President Obama intended to begin talks on TPP, there have been five formal rounds of TPP negotiations in Melbourne, Australia (March 2010), San Francisco,

USA (June, 2010), Brunei (October 2010), Auckland, New Zealand (December 2010), and Santiago, Chile (February 2011). The negotiating countries hope to complete Pacific Economic Cooperation forum to be held in Hawaii in November, 2011. In the meantime, further negotiations are planned for March 24 - April 1 (round 6, Singapore), 20 - 24 June (round 7, Vietnam), 6 - 11 September (round 8, San Francisco, USA), and 24 - 28 October (round 9, Lima, Peru). the TPP agreement by the 19th meeting of the Economic Leaders of APEC, the Asia-

During the TPP negotiation round in Chile in February 2011, negotiators received strong messages from prominent civil society groups demanding an end to theH H

secrecy that has shielded TPP negotiations from the scrutiny of national lawmakers and the public. Letters addressed to government representativesH H H H H H H H H H

in Australia , Chile , Malaysia , New Zealand and the U.S. emphasized that both the process and effect of the proposed TPP agreement is deeply undemocratic. TPP the February 2011 negotiations, but took no action. Why You Should Care TPP raises significant concerns about citizens privacy, freedom of expression and negotiators apparently discussed the requests for greater public disclosure during

due process rights, innovation and the future of the Internets global infrastructure,

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and the right of sovereign nations to develop policies and laws that best meet their domestic priorities and enable access to knowledge for the worlds citizens. The Office of the U.S. Trade Representative is pursuing a TPP agreement that will require signatory counties to adopt heightened copyright protection that advances the agenda of the U.S. entertainment and pharmaceutical industries, but omits the flexibilities and exceptions that protect Internet users and technology innovators. The TPP will affect countries beyond the nine that are currently involved in negotiations. The new TPP agreement will build upon a 2005 agreement betweenH H

New Zealand, Chile, Singapore and Brunei Darussalam (the P4 agreement ) but will include more extensive provisions on intellectual property and other issues. TheH

TPP will set rules that will likely be adopted initially by the 21 member economies in the Asia-Pacific Economic Cooperation forum . The TPP is being negotiated by 9H

members of APEC, and negotiators plan to finalize the TPP concept at the APEC Economic Leaders meeting in November 2011. Like ACTA, the TPP Agreement is a plurilateral agreement that will be used to

create new heightened global IP enforcement norms. Countries that are not parties to the negotiation will likely be asked to accede to the TPP as a condition of bilateral trade agreements with the U.S. and other TPP members, or evaluatedH H

against the TPP's standards in the annual Special 301 process administered by the Office of the U.S. Trade Representative. What You Can Do If youre in the U.S., take our Action Alert .H H H

If youre elsewhere, check out the Action suggestions from TPP Watch . iH D

Key DocumentsH

Leaked U.S. Intellectual Property Rights Chapter , February 2011 see documentH

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Leaked New Zealand IP chapter proposal , February 2011 see documentH

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Leaked Chile IP chapter proposal , February 2011 see documentH H

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documentH

Leaked comments from New Zealand TPP negotiators , December 2010 see Australian Government. Department of Foreign Affairs and Trade Update on FifthHD

round of TPP negotiations iiH

Remarks at the First Senior U.S. Government Officials Meeting for APEC iiiHD

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U.S. Congressional Research Service report on the TPP , November 2010H

(Intellectual Property goals on p. 14) see documentH

Original P4 (Trans-Pacific Strategic Economic Partnership Agreement) Text which,H

interesting enough, is missingsee document

U.S. Industry Demands for TPPH

U.S. Chamber of Commerce, MPAA et al. memo on IP demands for the TPP ,H D

December 2010 ivH

U.S. Industry letter , February 2011 see documentH

EFF DocumentsH

EFF Analysis of TPP TPM Provisions in leaked U.S. IP chapter see documentH

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EFF Presentation on Freedom of Expression, Indirect Censorship & Liability forH

Internet Intermediaries , Santiago Round TPP Stakeholder Forum, February 15, 2011 see documentH

February 15, 2011 see document

EFF Presentation on TPMs and Civil Rights , Santiago Round TPP Stakeholder Forum,H

Civil Society DocumentsH

negotiations delivered at February 2011 negotiation round vH D H

International Civil Society Requests for Transparency in the TPP TPP Watch Press Release, February 2011, Letters delivered to negotiators at ChileHD

round calling for transparency viH

Chilean NGO Derechos Digitales Press Release about IP provision in TPP , FebruaryH

17, 2011 viiD

TPP Media CoverageH

TechDirt: US Proposals For Secret TPP 'Son Of ACTA' Treaty Leaked; Chock Full Of Awful Ideas , March 11, 2011 viiiH D H

Wall Street Journal: US Seeks Concrete Progress On Regional Integration As APEC Host , March 9, 2011H

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Japan Times: Pitching TPP a tough nut to crack , March 11, 2011 ixH H D

ArsTechnica: Son of ACTA: meet the next secret copyright treaty , March 11, 2011 xH H D H

Broadband DSL Reports: Behold: The Son Of The ACTA - Draconion, Protectionist IP Laws Hashed Out In Secret , March 11, 2011 1H F U UH

Rick Shera, LawGeek NZ: U.S. Wants to Take an Axe to New Zealand IP Law , MarchH

16, 2011 2F

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Behold: The Son Of The ACTAH H

Draconion, Protectionist IP Laws Hashed Out In Secretby Karl Bode Friday 11-Mar2011 tags: legal Fileswapping business Op/Ed legislation world content Tipped by cabanaH H H H H H H H H H H H H

As we've discussed , the ACTA took all of this country's worst copyright ideas --many of them enshrined in the controversial DMCA -- made them considerably worse, then foisted them upon much of the globe with little to no real public discussion. The EFF notes that a new global trade agreement, the Trans-Pacific Partnership (TPP), is trying to take things even further -- exporting usually-draconian U.S. intellectual property beliefs onto a list of partner countries, including New Zealand, Australia, Brunei Darussalam, Chile, Malaysia, Peru, Singapore, and Vietnam. Just ike the ACTA, the agreement is being negotiated in total secrecy :HU UH HU UH

We dont know whats in the TPP IP chapter, and thats the point. The TPP is being negotiated in secret. Entertainment industry executives who are members of the Industry Trade Advisory Committee on Intellectual Property will likely get to see the agreement drafts again but the rest of us will be kept in the dark. But it doesnt have to be this way. The US Trade Representative could release the TPP IP chapter that it has tabled, and call for comments from all affected stakeholders, rather than just the members of the entertainment industry and the few DC-based lobbyists who were willing to sign Non-Disclosure agreements last year. It finally did so for ACTA, but only after negotiations had already concluded.

Techdirt directs our attention to the fact that a draft of the TPP has been leaked , and like the ACTA there are portions focused on making ISPs content nannies, including increased ISP liability for user copyright violations and new mandatory systems for disclosing the identities of these users to the entertainment industry. Most of these requirements go well beyond U.S. law, with many focused on making ISPs and governments worldwide the personal police forces for a handful of giant companies that are unwilling to adapt to the new business models in the broadband age. The EFF offers up a long list of Congressional Representatives that can be contacted to complain about this latest display of regulatory capture.HU UH HU UH

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US wants to take an axe to New Zealand IP law (updated)

It's one way of negotiating the Trans Pacific Partnership Agreement (TPPA) I guess. Leak a document containing multiple extreme positions and then gracefully back down in the face of inevitable objection from other parties fuelled by local community uproar - arriving at terms that are

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at least as good if not better than what you were really after. And the US is playing that game like a master if it's latest leaked TPPA IP chapter is anything to go by. Mind you, it had some ground to make up after its embarrassing stumble with ACTA. Positions as extreme as the latest US IP chapter surely cannot be anything other than blatant negotiation bullying. Even the RIAA (who must have had a large input into the paper given its focus on phonograms) could not in its wettest dreams expect to have New Zealand and other parties take such a large axe to our IP laws ... could they? But, without further ado, here are the lowlights in terms of the main changes which we would need to make to New Zealand law: Rights holders would be allowed to prevent parallel imports (which are currently allowed under New Zealand trademark law). We know how important it is to many old school rights holders to divide the world into artificial zones so that they can maintain archaic differential pricing and release dates. I don't imagine therefore that they will be consenting to parallel imports - so this is effectively a ban. Removal of the current copyright fair dealing exception for transient copying. So, you'd have to get permission from the rights holder if your browser caches any part of a website, whether you know it or not. Can't imagine caching ISPs, search engines or anyone else who actually uses the internet being too pleased with this one.[added 21 March 2011] Strengthened geographical indications - the champagne producers have managed to stop us describing our bubbly as champagne - expect the same thing to happen to brie, parmagiano reggiano, Gouda, Edam and the like. Even Yorkshire pud and American hot dogs might not be safe. Massive extension of copyright terms, from life of author plus 50 years, to 70 years. Works with unknown or no human author to 95 years. In some cases even extensions out to 120 years. We've come a long way since the Statute of Anne and then the American Constitution set basic copyright terms at 14 years, just because the US wants to continue to extract monopoly pricing on Mickey Mouse (who would have been in the public domain years ago if it were not for these extensions in the US). And remember, we're pretty much on our own on this one as far as Common law countries go - Australia, another party to the proposed TPPA, has already succumbed to some of these longer copyright terms so will be looking to even the playing field. I say that because the Australian Government Productivity Commission has just concluded that its Free Trade Agreement extension of copyright terms has been negative (PDF) for Australia, but then goes on to say that Australia should look at redressing the deficit by having its other trading partners cave in as well. Circumventing a Technological Protection Measure (TPM) will to be a criminal offence even if the work it protects is in the public domain or you want to exercise fair dealing rights like educational use or current affairs reporting. We'll also need to make sure that we change our curent regime so that region coding and zone access controls are protected (we decided to specifically state that such artificial measures were NOT protected when we changed our TPM law in 2008). The return of s92A guilt on accusation, repeat infringer, termination of internet accounts - 3 strikes or whatever you want to call it. So, the US wants us to effectively scrap the last 3 years of consultation around the replacement of section 92A and the reasonably balanced (but still not perfect) approach we are working towards in the Copyright (Infringing File Sharing) Amendment Bill due to be passed in the next couple of months. Imagine you're an ISP who has to bear the cost of gearing up for that regime only to be told later in the year that its Ground Hog Day and we're all going back to the section 92A debacle. Forcing us to reverse the decison recently taken to exclude software patents per se. Introducing statutory damages (which give rights holders windfall damages up to 3 times their actual losses). No doubt the copyright trolls will like that. Add to that full recovery of lawyers' fees plus presumptions in favour of rights holders (so they don't need to first prove they there is any

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Other TPP ResourcesH

TPP Watch

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Tech Liberty NZ

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Public Citizens TPP Page

copyright or that they own it). All of this will effectively give anyone wanting to claim IP rights a huge advantage. We know that many IP claims are in fact made by companies wanting to shut down competition or by those wanting to stifle criticsm. IP law should not be used for these sort of ulterior motives. ISP policing of IP rights incuding a requirement for ISPs to give up their customers' identities when they receive a mere allegation from a rights holder. Criminal liability even where the infringement has no commercial value at all. Pushing Courts to impose imprisonment as the default sentence for infringement even where no monetary benefit is obtained. These last two are particularly well hidden - the provisions actually refer to criminal liability for infringements on a commercial scale. But, when you read the fineprint, commercial scale includes significant wilful ... infringements that have no direct or indirect motivation of financial gain. And, as if the US version of the TPPA itself wasn't bad enough, if we sign up to this, we'd also be agreeing to enter into 7 other international IP treaties. These include ones, like the two WIPO internet treaties, that we have already debated and decided NOT to accede to. Plus others that we have decided are not of pressing concern. All this by the end of this year. That's why I say that these suggestions from the US, if we agreed to them, overall would represent huge changes to our IP laws not seen in the last 20 years. The galling thing about all of this too is that we have been debating these issues for many years in a rational, multistakeholder, consultative manner not in the secretive manner in which TPPA is being railroaded through. In the copyright arena for example, we started to look at how our law should deal with digital creativity 10 years ago with MED's publication of two comprehensive papers on IP in the digital age. Since then we've debated specific proposals in various legislation - Patents Act, Trade Marks Act, Copyright Act, plant varieties etc - they've all been revised to take account of these issues. Parliament and successive Governments have repeatedly approved the fine balances that we have arrived at. This would run a coach and horses through much of that but at least our officials are not having a bar of it (PDF). They need our support. It's somewhat patronising to now be told that we effectively got it all wrong and need to make fundamental changes ... but, oh, wait a minute, we're not going to tell you what those changes are. UPDATED: With the kind permssion of RadioNZ, I've embedded a podcast of my TPPA interview with Kathryn Ryan, Nine to Noon, 16 March 2011.

(download) UPDATED 21 March 2011: The more I read of the US proposal, the more I find to dislike, and I haven't even really focused on patents yet. Just read again Article 4.1, which would require us to remove our transient reproduction exception (updated above).

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Public Citizens and Third World Networks Analysis of Leaked NZ NegotiatorsH

Comments , December 2010H

TPP Digest

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Inside U.S. Trades World Trade Online KEI TPP Timeline PageH

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Public Knowledge, Proposed New Copyright Treaty Asks For Tougher Terms Than ACTA

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https://www.eff.org/issues/tpp

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What can we do?H H

Add your voice of opposition to the Trans Pacific Partnership, by signing here . Get a group together and organise a protest or leaflet at lunchtime. If you are in Wellington, contact TPP Action Group to stay in touch with future actions and organising against the TPPA. If you are in Auckland, Global Peace & Justice Auckland has been active in organising against the TPPA. If you are in Christchurch, NZNotForSale is based there .H H H H H H

Find out more online. In addition to tppwatch.org , further information and campaigning websites on the TPPA in Aotearoa and internationally are campaign site www.nznotforsale.org and digest site for researchers www.tppdigest.orgH H H H H

Read No Ordinary Deal: Unmasking the Trans-Pacific Partnership Free Trade

Agreement, edited by Jane Kelsey. Purchase from www.bwb.co.nz or bookshops, or ask your local library to order it.H H

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Get the word around all your networks, facebook pages, websites and media. (For some web buttons to link to this site - click here ).H H

Ask your MPs, local government and iwi leaders if they know whats going on. Demand the government holds an inquiry to bring the negotiations into the daylight Support the education campaign on the Trans Pacific Partnership free trade agreement. Click here to make an easy, online donation nowH

(Photos from the protest in Auckland in December are here on nzpaimages.co.nz )H H

Fifth round of Trans-Pacific Partnership Agreement (TPP) Negotiationsii

Chile hosted the fifth round of TPP negotiations in Santiago from 14-18 February 2011, with the nine TPP countries (Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, the United States, Vietnam) advancing further toward their goal of developing a high quality, comprehensive, 21st century regional trade agreement. Draft text was under discussion in most of the 24 negotiating groups, and officials undertook careful review of text proposals made by each country. Having consolidated the proposals made to date by all parties, negotiators worked through the texts, seeking to narrow differences between them and to consider the interests and concerns of each country. Market access negotiations on goods tariffs commenced in Santiago, following the exchange of initial offers by all nine parties in January 2011. Goods negotiators agreed to exchange lists of requests for improvements in these initial offers next month ahead of the next round in Singapore at the end of March. Officials also progressed discussions on how best to develop a TPP rule of origin, a key element of building a regional trade agreement, and agreed to exchange proposed product-specific rules of origin in early March. Australia will continue to push for maximum tariff elimination over time and regional rules of origin that facilitate more efficient and streamlined supply chains for business in the Asia-Pacific. TPP Parties also agreed to exchange initial market access offers on services, investment and government procurement before the next round of negotiations. Services and

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investment offers will be made on a negative list basis, to all TPP parties. Australia's offers are being prepared taking into consideration input from stakeholders in public consultations to date, and in close consultation with state and territory governments. We welcome any further feedback from stakeholders with regard to these issues, including identification of offensive interests in particular TPP markets. Australia will be looking for high quality initial offers from TPP parties that minimise restrictions on foreign investment and foreign services suppliers, and provide maximum transparency and certainty for business. The negotiating group responsible for the new, cross-cutting, 21st century issues that are being explored in the negotiations analysed the proposals under discussion in each negotiating group and focussed on:

a proposal for promoting competitiveness and facilitating business in the region; how to promote the participation of small- and medium-sized businesses in international trade; how to deepen the production and supply chain linkages between TPP countries; how to enhance the coherence of the regulatory systems of the TPP countries to better facilitate trade; and how to promote development. As in previous negotiating rounds, TPP officials received input from a wide range of representatives of business, civil society and other stakeholder groups on a variety of issues. Participating stakeholders made presentations throughout the week in a program that ran parallel to the negotiations on issues ranging from labour law and practice, to intellectual property and financial services. The ongoing engagement with stakeholders from all TPP countries continues to provide valuable input to the negotiations. The next round of TPP negotiations is scheduled to take place at the end of March in Singapore. Dates are yet to be confirmed as TPP parties agreed in Santiago to extend the length of the round so that negotiators would have more time to make progress in each group. This reflects the decision of the nine TPP Leaders to make maximum headway by the time of the APEC Leaders' meeting in Honolulu in November 2011. We will provide further information on dates and any stakeholder program for the Singapore round on our website when they are available.

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Australia's negotiating team continues to welcome the input of stakeholders in our public consultation process. The next set of public consultations in capital cities is planned for April/May 2011. Further information on these consultations will be sent to stakeholders after the next round of negotiations. Written submissions are encouraged at any time, and negotiators are available to meet with interested stakeholders on relevant issues upon request. We remain particularly interested to talk with companies or individuals regarding any specific market access restrictions or obstacles faced in TPP countries. To make submissions or appointments, please email us at tpp@dfat.gov.auH

Remarks at the First Senior Officials Meeting (SOM) for the Asia Pacific Economic Cooperation (APEC) Forum Remarks Hillary Rodham Clinton Secretary of State The Ronald Reagan Building Washington, DC March 9, 2011

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Thank you all very much. Good morning. I appreciate Mike Fromans introduction and his brief summary of all of the reasons why President Obama and the Obama Administration are committed to the region and committed to APEC. And Im delighted to be here today, and I want to thank all of our guests for joining us, including members of Congress and the business community, in particular the members of the APEC Host Committee who are working to expand a public-public collaboration throughout our activities. And let me also extend a very warm welcome to senior officials and other representatives from APECs member countries. It is exciting for the United States to serve as the host of APEC for 2011. This has been in preparation for many months. We hope our time together here in Washington and in Montana, California, and Hawaii later this year, will yield real and lasting benefits for all of our people, because after all, we meet at a moment of fast and far-reaching change. The transformations that many of our economies have experienced in recent years have remade our region and our world. Hundreds of millions of people have climbed out of poverty. Places that were once largely removed from the global economy are now crackling with commerce. And this progress is a testament to the talent and ingenuity of people across this region. And it is also a testament to the power of economic integration. The rise in prosperity and decline in poverty occurring throughout the Asia Pacific region are a direct result of greater trade and investment. These are goals that we have pursued and achieved together. And the United States is proud of the role that we have played in this regions progress as a trade and investment partner to many APEC economies, a market for your goods and services, and a leading proponent of an open and liberalized approach to shared economic activities.

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Now, theres no question that this approach has paid off, but growth has also given rise to new challenges. Food and fuel prices have climbed. Greenhouse gas emissions and the consumption of natural resources, leading to environmental consequences, are there for all to see. Meanwhile, growth has shifted the geo-political order of our region and the world as new centers of influence have emerged and new dynamics have developed between and among our nations. All told, these trends add up to a sense of possibility about the positive developments of the future, but also a sense of anxiety, because that future is far from certain. I have said many times before that much of the history of the 21st century will be written in the Asia-Pacific region. And it is a history that we writing together. Every economy represented here is hard at work creating jobs, addressing the social and environmental consequences of growth, and laying the groundwork for long-term prosperity. Now of course, there will be differences in how our countries pursue these common goals. But I believe strongly we must pursue them in partnership through more and better trade, investment, and collaborations in science, technology, and education if we wish to continue the progress that has already begun. That means we must decide how we will work together, what rules we will adopt, what principles we will abide by, and what behavior we will encourage and discourage in ourselves and in each other. These are open questions that deserve the most careful analysis because we are called upon to answer them as individual economies and as an economic community. APEC provides a forum for reaching those answers. The United States brings to APEC a deep commitment to this regions stability and prosperity. Since the earliest days of the Obama Administration, we have been working to strengthen our one-on-one relationships and to galvanize more effective regional cooperation on shared challenges. We have affirmed and deepened our alliances with Japan, South Korea, Australia, Thailand, and the Philippines. We have increased our engagement with old friends and new partners, including India, Indonesia, Vietnam, New Zealand, Mongolia and Malaysia. We have launched a strategic and economic dialogue with China to build greater trust between our governments and to coordinate policy on consequential issues facing both of our nations. And our relationships with the APEC economies of the Americas Canada, Mexico, Chile and Peru have never been stronger. We have also significantly increased our participation in Asian regional organizations. That includes ASEAN. In the past two years, we established a U.S. mission to ASEAN, signed the Treaty of Amity and Cooperation and held two U.S.-ASEAN summits. We have also stepped up our engagement with the East Asia Summit. I attended the summit in Vietnam in October on behalf of the United States, the first time our country has ever participated. And President Obama will attend the summit later this year in Indonesia. We view these institutions as pillars of a strong and effective regional architecture, which can help us work together to manage urgent strategic security and political issues. APEC has an important role to play in that architecture as the leading forum for designing economic policies that promote regional growth and prosperity. Together, these actions by the United States comprise a strategy that I call forward-deployed diplomacy. It reflects our belief that the security and prosperity of the Asia-Pacific region is critical to the security and prosperity of the United States and the rest of the world. And furthermore, as a Pacific nation and a Pacific power, the United States has a responsibility to help lead in meeting these challenges and making the most of the opportunities we face today. So the

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United States comes to APEC as the largest economy in the world, with a long tradition of innovation, whose people have built businesses and invented technologies that have improved billions of lives. Now it is true that our economy, like many worldwide, has suffered in recent years. And we are working overtime to undo the effects of recession, to create jobs, strengthen global economic norms and increase our trade and investment ties with other countries. Some have questioned whether the United States will emerge from this period as strong as we were before. Well, I am very bullish about our future, and so are millions of Americans who know that our brightest days, as it always is true in America, are still ahead of us. We will continue to lead in driving growth and innovation, just as we have in the past. And a key element of our success will be how we manage our economic engagement in Asia. We recognize it as the most dynamic region in the world today. And although APEC is comprised of just 21 economies, together we generate more than half of global output and nearly half of global trade. Six out of ten of the largest trading partners of the United States are in the region, and our exports to this region are growing much faster than those to any other part of the world. As we strive to meet President Obamas goal of doubling exports in the next five years, we are looking to this region, to our partners in APEC, for opportunities to do more business. And I know that every economy here is doing the same. That is good news. We are well positioned to rise together, to achieve greater prosperity in partnership, to offer all of our people a chance at a better future. But to do that, we need to decide whether we will embrace strategies that pay off for all of us while resisting the impulse to embrace quick fixes at the expense of long-term gains. For the United States, that begins with addressing real questions that some in the region have about the strength of our commitment, as well as doubts that some of our own people have about whether the global playing field is truly level or rigged to Americas detriment. To those in the region, I say the United States is determined not just to reengage but to lead. We have an ambitious agenda for delivering significant benefits to our people and our partners, and we are steadily carrying it out. And to citizens of my own country, we know as we watch factories closing down at home and products continuing to flow in from overseas that economic integration is a question mark. And many people wonder whether it will really help America and Americans. Well, let me say this. Ensuring that economic engagement delivers results to the American people is out top domestic priority. It is a top foreign policy priority as well, and it is a personal priority, more to me having had the great privilege of traveling our country extensively, representing all of New York state for eight years in the Senate. And I will be speaking more about that in the weeks ahead as we prepare for APEC. The United States seeks partnerships that are governed reasonable, rules-based approaches, that give businesses from all of our economies the chance to compete and that are grounded in shared principles. Specifically, there are four principles the United States believes are critical to supporting long-term, high-impact, inclusive growth. We are ready to defend and advance these principles in our engagement with economies in APEC and beyond. First, we seek an open platform, one that allows for participation from around the world, including economies not represented in APEC, in order to maximize opportunities for entrepreneurs, investors, workers, and consumers everywhere. Openness has been an attribute of APEC from the beginning, as

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reflected in the Bogor goals. It reflects our shared belief that an open system invites the most growth. Even as we work to forge free trade agreements amongst our countries and craft a Trans-Pacific Partnership Agreement, its important we reaffirm this principle because the Asia-Pacific region should welcome ideas, products, and capital from all corners of the world. Second, we seek a free platform, one that includes as few barriers to trade and investment as possible. In recent years, we have made strong progress together toward removing tariffs and other so-called border barriers. But lets face it: Numerous non-tariff barriers remain. For businesses to make inroads into new markets and for citizens to find jobs, we must better align our standards applying to everything from manufactured goods to buildings. We must improve the quality of our regulations to ensure that they are not unnecessarily burdensome. And we must refrain from using local content requirements that discriminate against foreign companies. Third, we seek a transparent platform in which the so-called rules of the road are developed in consultation with all stakeholders and known to everyone, no matter their connections or country of origin. In the absence of transparency, corruption flourishes; regulations can be applied arbitrarily, small business owners may discover that some rules change without warning or apply to them but not to others. None of this is good for competition or for sustaining the trust and confidence that is necessary for trade and investment. For the best results, the rules of the road should be known to all and applied to all. Together, openness, freedom, and transparency help sustain the fourth principle, fairness. The United States is looking for a level playing field, an environment in which businesses rise or fall based on honest competition rather than government manipulation. American workers are able to sell the results of their labor overseas just as they buy products made by workers abroad, entrepreneurs can sell their products and services to provide companies and governments alike, and investors have the confidence to make investments across borders. We also need to ensure that governments enforce and protect intellectual property rights, because theft isnt fair and because without these protections, inventors cant reap the rewards of their ideas and innovation suffers. Now, these principles arent prescriptions. Theres not one way or one formula that fits every situation. And we are willing to debate how they ought to be applied in various circumstances to address the different needs of different countries. We know that no economy perfectly reflects them, ours included, but we believe that together these principles ensure the best circumstances for all nations to rise, from emerging economies to those that are highly developed. They serve the interests of the American people, the Chinese people, the Australian people, all the people of Southeast Asia. In the coming months, the United States will take concrete steps towards strengthening an open, free, transparent, and fair economic platform in the Asia Pacific by accomplishing three goals that weve been working toward for many years: achieving congressional approval of the Korea-U.S. Free Trade Agreement; making substantial progress toward agreement on all key issues of the TransPacific Partnership; and of course, hosting a productive, results-oriented APEC 2011. I want to briefly discuss each and how they support a principled, pragmatic strategy for regional prosperity. The U.S.-Korea Free Trade Agreement, also known as KORUS, represents a major achievement for both Korea and the United States, and we believe it can serve as a model for the region. It eliminates tariffs on 95 percent of U.S. consumer and industrial exports within five years

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and significantly reduces tariffs on agricultural products. It includes commitments to provide market access in major service sectors such as telecommunications, accounting, and express delivery. It includes significant improvements in intellectual property protection. And it addresses behind-theborder issues through strong provisions on competition policy, labor practices, environmental protection and regulatory due process. Many of these provisions posed political challenges, and I want to commend both Presidents Lee and Obama for advocating for this agreement and explaining its benefits to both the Korean and American people. We believe the payoff will be significant for both of us. We expect KORUS to lead to an $11 billion increase in annual goods, exports, and to support at least 70,000 additional jobs on the U.S. side alone. And the economic benefits for the Republic of Korea are also considerable. But there are also the benefits that cannot be expressed in dollars, a closer political and strategic partnership with a key ally that is cemented not only by shared security concerns, but by closely integrated economies. This free trade agreement will deliver immediate economic results while strengthening the broader strategic relationship between Korea and the United States for future generations. Our goal is to have all three pending agreements KORUS, Panama, and Colombia with their outstanding issues addressed approved by Congress this year. The United States is also making important progress on the Trans-Pacific Partnership, which will bring together nine APEC economies in a cutting-edge, next generation trade deal, one that aims to eliminate all trade tariffs by 2015 while improving supply change, saving energy, enhancing business practices both through information technology and green technologies. To date, the TPP includes Brunei, Chile, New Zealand, Singapore, Australia, Malaysia, Peru, Vietnam and the United States. Now we hope in time that that number will grow to include all the APEC economies and that the TPP will provide a foundation for an eventual free trade area of the Asia Pacific. The TPP represents a new kind of trade agreement, one that promotes not just more growth but better growth. For the first time in any trade negotiation, TPP is focused on small and medium-sized enterprises, which, as you know, are major job creators, but which are less engaged in international trade. We are taking on the barriers that hit these small and medium-sized businesses the hardest, such as complex legal frameworks and a lack of transparency. Were dealing with new obstacles, like the increasingly common problem of so-called indigenous innovation, measures that force investors to favor one countrys domestic technology. And we are working to ensure that the TPP reflects shared values, including worker rights and protection of the environment. These goals matter to all of us, and they should especially matter to those emerging economies that are growing at such a rapid rate. Now, some may think they cant afford to stop and invest in environmentally sound practices if theyre going to catch up with the competition, or that the challenge of achieving balanced, inclusive growth doesnt apply to them yet, or that they can postpone making serious investments in knowledge-based industries until their economies are further along the development spectrum. But in fact, economies at all stages of development need to be dealing with these issues now, because their repercussions are already evident in deforestation, food insecurity, social inequality, and political instability. And we all face worldwide, growing problems of under-employment. Even in China, where the economy is roaring ahead, there are not yet enough high-caliber professional jobs to absorb the 6 million college students graduating every year. These young people move to the cities with high hopes and often return home after a few years disappointed and uncertain about their future. Now, that story is familiar to many young people in this country too.

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So all of us need to be working on several levels at once creating jobs, increasing trade and investment, fueling innovation, investing in education, and pursuing inclusive growth that pays off across populations. These are the elements of a 21st century economic agenda. And helping us achieve that agenda is a job for APEC. So thats the third and final goal that I want to discuss today. The United States plans to use our year as host of APEC to push this organization to do more to deliver useful, tangible results. This builds upon the vision that APEC leaders voiced in Yokohama last year to promote stronger and deeper regional economic integration by advancing common trade and investment interests. In 2011, we want APEC to help define, shape, and address next generation trade and investment issues, and to take steps to help reduce the time, cost, and uncertainty of moving goods through regional supply chains. We want to work through APEC to find ways to achieve environmentally sustainable growth by reducing barriers to trade in environmental goods and services, stopping illegal logging, eliminating inefficient fuel subsidies, and facilitating trade in remanufactured products to reduce waste and save energy. We want to work with APEC economies to strengthen the implementation of good regulatory practices to prevent technical barriers to trade, to increase regulatory cooperation particularly as it relates to emerging technologies. We want APEC to help combat poverty. For example, to prevent destabilizing spikes in international food prices, by ensuring that none of our economies impose export restrictions on food. And we want to build upon our tradition of problem solving and help APEC become an even more effective forum where governments and businesses can find pragmatic solutions to trade and investment problems, and where new ideas can be debated and tested. APEC has come a long way in the past two decades. Together, we have built its capacity to deliver results for member economies. Now, we ought to go even further and help APEC become an even more effective organization, one that fosters the norms and practices that will give rise to more and better economic cooperation throughout the region. Now I will be the first to say none of what I have said already will be easy. This is a diverse community. Each of us faces our own distinct challenges, and each boasts of our own distinct strengths. But no matter where we fall on the economic spectrum, I believe we are all pursuing the same basic goals more jobs for our people, more money in their pockets, and economic climate that supports entrepreneurs, educational systems and infrastructures that promote long-term growth, and above all, a sense that our countries are moving in the right direction and that all of our best days are yet to come. For billions of people worldwide, life is changing in dramatic ways. The future is opening up, but that future is also unknown. In December early December, I gave a speech in Doha in which I talked about all of the challenges to inclusive growth, employment, and opportunity that we saw in the Gulf and North Africa. In the question-and-answer period, there were many questions about what I meant, and I talked very bluntly about corruption and the lack of transparency, and the need to instill in young people who are now globally connected trust and confidence that their governments are really working for them. That is one of the big challenges for governments everywhere today. Because what used to be the private province of governments or the very top leaders in business is now open to the world in a way that never existed. Corruption is now a concern of citizens who see with their own eyes that the people leading them are living in a much better way than they are, and that there doesnt seem

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to be much attention paid or concern for the failure to raise the standard of living and the incomes of families. We are living in a totally different environment. I think its good. I think the fact that a young person in Egypt can communicate with a young person in Switzerland or the United States or Japan and can share ideas and talk about how to improve their lives and make their countries even better is 21st century patriotism. These young people are looking to see their own countries deliver on the promises that we have all made over so many decades. Those governments that understand this and put into action economic policies that respond to these needs will flourish. The choices we make today and the work we do together will help define the contours and give people the tools they want to pursue their own dreams and make the most of their own God-given potentials. The United States is committed to this mission. We seek economic growth that accords with principles of openness, freedom, transparency, and fairness because we want to see the entire world not just a small slice at the top get richer and stronger. From the computer programmer in the United States to the electronics manufacturer in China to the service provider in Vietnam to the miner in Peru, we know that our futures are entwined. Our people will rise or fall eventually together, and we each have a stake in each others success. So we want to work with you to help lead this regions progress in a spirit of true partnership. That is our goal. And we look forward to achieving real substantial milestones on the way to those goals in 2011 and beyond. This is a great opportunity for APEC, and we know were ready to seize it. Thank you all very much. (Applause.)

PRN: 2011/360

US Industry IP memo for the TPP negotiations leakediv

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Revolving Door

Knowledge Ecology International (KEI) has received a copy of U.S. industry demands on the Intellectual Property chapter of the Trans-Pacific Partnership Agreement (TPP) negotiations. A draft letter from US industry to USTR has been leaked and is available here .H H H H

The letter was prepared by the Intellectual Property (IP) Task Force of the U.S. Business Coalition for TPP, that represents a cross-sectoral group of US companies and business groups including the Pharmaceutical Research and Manufacturers of America (PhRMA), the US Chamber of Commerce, and the Motion Picture Association of America (MPAA). The metadata from the MS Word file identifies the author as Anissa Whitten*, a former Department of State Foreign Affairs Officer who now works for the MPAA.

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According to the letter, Industry is asking the US government for a number of TRIPS plus, WCT plus and ACTA plus provisions: - To seek the highest possible IP protection from TPP negotiating parties. - To built upon existing FTAs and use the US/Korea Free Trade Agreement as a baseline. Although the letter does not specifically mention the May 10, 2007 compromise that included important public health flexibilities in the US/Peru FTA, US Industry is clearly demanding the US government to reject the compromise as the basis for negotiations. - To go beyond the Anti-Counterfeiting Trade Agreement (ACTA). For instance, it states that the TPP should outlaw camcording in theaters, despite the fact that the ACTA made it optional for countries to have criminal penalties for camcording. The letter asks the US government to pay special attention to geographical indications, WIPO 1996 Internet Copyright Treaties, patent protection for software, test data protection, pharmaceutical reimbursement policies and IPR enforcement. The provision on test data protection reads as follows: Provide Robust and Effective Protection of Innovators Data. Innovative industries, including biopharmaceutical and agrochemical companies, expend tremendous effort and resources conducting research to demonstrate the safety and efficacy of their life-saving and lifeenhancing inventions. Patent protection, which runs concurrent with data protection, does not protect the effort and investment needed to prove safety and efficacy of these products. Unless the data developed to prove a products safety and efficacy is effectively protected, companies are unable to recoup the significant investment required to generate the data and the costs of launching a product. As such, it is critical that the TPP ensure the robust and effective protection of innovators data. With regarding to digital works and the Internet, the paper calls for a definition of commercial scale which is not tied to the profit motive of the infringer: Commercial scale. The TPP must reflect the reality that right holders are harmed when illegal content is posted to the Internet with or without charge to the downloader and acknowledge harm to the infringed party rather than profit motive or the commercial purpose of the infringer. The industry wants the agreement to mandate longer copyright terms: Extended term of protection for copyrights to match US law. There is an unmistakable global trend toward extending the term of copyright protection. The TPP must reflect this reality, preventing a potential irritant to international trade that results from divergent terms among trading partners.

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Relevant to the US consideration of the Hague Convention on the Choice of Court Agreements, and to many consumer protection concerns, the industry calls for the TPP to focus on the role of contracts. Contractual rights. The TPP should affirm that all right holders are allowed to exercise economic rights in their own names and that any person acquiring or holding such economic rights by virtue of a contract must be able to exercise those rights and enjoy fully the benefits derived from those rights. The industry wants the TPP to mandate software patents: The language of the TPP agreement needs to be strengthened to specifically require providing patent protection for computer implemented inventions. The main area where transparency is mentioned is in connection with the ability of the industry, including large drug companies and other health care providers, to have deeper access to the decision making process of regulators, including regulators who set prices. The US industry position contrasts the New Zealand government position leaked last week that challenges the overprotection of intellectual property, particularly in the areas of copyright and patents and asks the TPP patent and copyright provisions be no more stringent than existing WTO TRIPS global standards.H H

For more information on the TPP negotiations, see:

American University PIJIP website on TPP . USTR website on TPP Public Citizen's web page on TPPH H H H

* From a MPAA bio: "Anissa Whitten is Vice President of International Affairs and Trade Policy for the Motion Picture Association of America (MPAA). Ms. Whitten works with federal government agencies and Congress to reduce foreign trade barriers and improve protection of intellectual property in foreign markets for the U.S. motion picture, television programming and home video industries. Prior to joining MPAA, she worked in the State Departments Bureau of Economic and Business Affairs as States expert on trade in services, representing the Department at World Trade Organization and free trade agreement negotiations. Her other policy portfolios included government procurement, trade capacity building, cultural diversity, and temporary entry. Whitten entered the State Department as a Presidential Management Fellow from the US Department of Labors Bureau of International Labor Affairs."

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International Civil Society Requests Transparency in Trans-Pacific FTA Talksv

LettersOctober 2011 H

U.S. Civil Society to United States United States Trade Representative Ron Kirk Peruvian Civil Society to Minister of International Trade Jos Luis Silva Martinot Australian Civil Society to Minister for Trade Craig Henderson Malaysian Civil Society to TPP Negotiators New Zealand Civil Society to Prime Minister Rt Hon John Key

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Australian Civil Society to Prime Minister Julia Gillard and Minister for Trade Craig Emerson Chilean Civil Society to the the Minister of External Relations Alfredo Moreno Charme Malaysian Civil Society to the Minister of International Trade and Industry YB Dato' Sri Mustapha Mohamed New Zealand Civil Society to Prime Minister John Key and Minister of Trade Tim Groser U.S. Civil Society to United States Trade Representative Ambassador Ron Kirk

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International Civil Society Demands End To Secrecy In TPPA talksvi

Media Release: Jane Kelsey. Wednesday 16 February, 2011. Negotiators in Santiago, Chile for the fifth round of Trans-Pacific Partnership (TPP) talks were delivered a forceful message today by prominent civil society groups, demanding an end to the secrecy that shields their negotiations from the scrutiny of national lawmakers and the general public. Jane Kelsey, who is at the meeting, said that open letters addressed to government leaders in Australia, Chile, Malaysia, New Zealand and the United States of America, signed by trade unions, environmentalists, faith and social justice organisations that speak for hundreds of thousands of concerned citizens, were handed to each delegation.

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The letters object that the proposed agreement is deeply undemocratic in its process and its effect. Its rules are expected to restrict domestic policies and laws on areas as diverse as healthcare, energy, culture and financial stability for decades ahead, and would give major corporations enormous leverage over democratic processes, including the power to sue governments in international courts. Despite these far-reaching implications, the negotiations take place behind closed doors. The secrecy far exceeds that of the World Trade Organisation and perhaps even the negotiations on the Anti-Counterfeiting Trade Agreement, where governments agreed to release the texts after repeated leaks. The call became more poignant as groups monitoring the talks announced they had obtained leaked copies of further negotiating texts on intellectual property tabled by several countries. The open letters to governments call for negotiators to agree at Santiago to: 1) Create and maintain a public website on which governments and civil society can post information and participate as equals in a dialogue and debate; 2) Post the draft text of each chapter at the end of each round of negotiations to enable expert and public scrutiny. Given the global financial crisis, the perfect starting point is the texts on investment and financial services, completed in the December 2010 Auckland round; 3) Post countries position papers on specific subjects that are tabled during negotiations; 4) Guarantee that all civil society has equal access to information and engagement with the process, regardless of whether they are private sector or public interest groups, supportive or critical of the proposed agreement. To focus the challenge to the negotiators, independent experts have constructed mock texts of their own dealing with investment and financial services, based on existing free trade agreements among the parties. Analyses based on these mock texts were presented during stakeholder sessions on the second day of the Chile negotiations. Delegations were challenged to provide the real draft texts to enable more accurate and truly informed debate. Attachments:

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NZ_Release-The-Text-Feb-10-2011 Malaysia-TPP-NGO-letter Chile_TPP_CartaU U

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HU

HU

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Aust-Release-the-Text-Final

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AFTINET-Media-Release-final-140310

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US-Transparency-Letter-to-USTR-Kirk-021411-Final[1]

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INTELLECTUAL PROPERTY IN TRANS PACIFIC PARTNERSHIP AGREEMENTHU U

During this week was held in Santiago, Chile the V Round of Negotiations for the extension of the Trans Pacific Partnership Agreement of Free Trade (known as TPP), signed by Brunei, Chile, New Zealand and Singapore (P4) in 2005, which seek to join the United States, Australia, Peru, Vietnam and Malaysia.HU UH

According to published reports, the new multilateral agreement would mean the creation of a broad free trade area between some of the largest economies in America and Asia, and would include, among other regulations, new international rules on intellectual property. For ONG Derechos Digitales, the establishment of new obligations on intellectual property in general and in particular copyright- in a new free trade agreement is a matter of great concern. Over the past decade, Chile incorporated into domestic law provisions that are above international standards agreed at the World Intellectual Property Organization and the World Trade Organization, as a result of obligations under the Free Trade Agreement signed with the United States in 2003. Therefore, we call upon the Government of Chile to dont undertake to negotiate or accept any new obligations that may affect the rights of users and domestic consumers by excessive protection of intellectual property. Instead, we encourage our country to promote standards that balance the legitimate rights and interests of stakeholders, such as strengthening the public domain, stablishment of exceptions and limitations to copyright that allow fair use exceptions, regulation of orphan works and express establishment of judicial system of notification and download allegedly infringing content on the Internet,

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among other provisions that consider public interests involved in the regulation of copyright.

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US Proposals For Secret TPP 'Son Of ACTA' Treaty Leaked; Chock Full Of Awful Ideasfrom the exporting-protectionism dept

We've mentioned a couple of times that now that ACTA is "complete", if not yet approved, USTR negotiators have moved on to what many are calling the son of ACTA in the form of the Trans Pacific Partnership Agreement (TPP). The USTR has shown what it's learned from the ACTA negotiations: which is that it can absolutely get away with unprecedented levels of secrecy. It has no problem sharing details with industry representatives, but the public and consumers who will be most impacted by the intellectual property rules found in TPP are kept completely away. However, as with ACTA, there are leaks. KEI has been able to get a leaked version of the current proposal from the USTR , and as we'd been hearing, it really is another industry wish-list of stricter anti-consumer intellectual property rules, that go well beyond current US law. This is the entertainment industry and the pharma industry trying to bypass the actual law-making process and using "friends" within the USTR to get such rules in place via secretive, nondemocratic, treaty making processes. It's really a sickening display of crony capitalism and regulatory capture at work. Anyone working in the USTR should be ashamed of this document.H H H H H H

The early reports on TPP was that the USTR would only consider ratcheting up intellectual property laws to more draconian states. It would not even consider the idea of decreasing the already too strict levels of intellectual property laws. It also would not bother with increasing consumer protections or important exceptions to stronger intellectual property law -- even if it's been shown that those exceptions have a much greater impact on the economy than the IP laws themselves.H H

Some key points:

It would require that countries participating ban parallel import for any copyright holder who wants it. That is, if a copyright holder says no, countries would have to block your ability to purchase legal and authorized products in one country and import them into another. This is the so-called "grey market" which should be perfectly legal, but which many companies would like to block so they can price things much higher in some countries.H H

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It would require criminal enforcement for certain cases of circumventing DRMeven when there's no copyright infringement, going beyond existing treaties even when there's no copyright infringement. There are some exceptions, but rather than allow countries to determine their own exceptions, it defines the exceptions and actually says countries cannot go beyond those. It would impose liability on ISPs for dealing with infringing works that goes well beyond the DMCA. Yes, Hollywood may finally be able to force ISPs to act as their personal business model cops -- something they've been unable to do in the US. Along those lines, there would be "legal incentives" for ISPs to go above and beyond that in helping copyright holders. Forget privacy. ISPs would be required to identify users on request, going well beyond existing law. Expand what is considered patentable, going in the opposite direction of what's needed. Most troubling, it would allow patents on inventions even if the inventions do "not result in the enhancement of the known efficacy of that product." This seems to go against the very purpose of patent law, but the USTR has already shown it couldn't care much less than actually obeying the Constitutional underpinnings of patents or copyright law. Continues the troubling and problematic idea that patents must be assumed valid, even if they were only briefly reviewed. A requirement to forbid third party opposition of patent applications. This is particularly ridiculous. Allowing third parties to oppose patent applications (as is allowed with trademarks) would certainly help prevent some really bad patent applications from getting through. How can the USTR justify not allowing such a basic concept of letting third parties point out bad patents before they're approved. Especially when you combine this with the "presumption of validity" in patents once granted, it looks like the USTR is trying to increase the rubber stamping of patent approvals.

It's basically a checklist of how to make both copyright and patent law even more antiinnovation. It's pretty much a travesty. No wonder the USTR didn't want this to get out. It's a joke, and they must have known that anyone who actually understands what this really means would laugh at this. That must be why the document is declared classified until four years after the TPP is agreed upon. Declassify on: Four years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations. * This document must be protected from unauthorized disclosure, but may be mailed or

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transmitted over unclassified e-mail or fax, discussed over unsecured phone lines, and stored on unclassified computer systems. It must be stored in a locked or secured building, room, or container. Oh yeah, as for things like consumer protections or safeguards for competition? KEI correctly summarizes that they are "weak, meak or missing." That's because this document isn't about enabling competition, innovation or consumer benefit. It's about helping out a few legacy companies who don't want to compete, and who have plenty of job openings ready for the folks involved in these negotiations down the road.H H

If you find this to be a disgusting display of regulatory capture, done in secret, for the benefit of a few companies, against the basic principles of the free market and consumer rights, you should speak up. The EFF has put together details of which elected officials should be contacted to pressure the USTR to open up these proceedings and to hear from the public on their proposal. They've also set up a form to let you contact your elected official, though I recommend you write your own version of any letter, rather than sticking with the boilerplate. None of my elected representatives are on the target list, but if yours are, please contact them.H H

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US Proposals For Secret TPP 'Son Of ACTA' Treaty Leaked; Chock Full Of Awful Ideasfrom the exporting-protectionism dept

We've mentioned a couple of times that now that ACTA is "complete" , if not yet approved, USTR negotiators have moved on to what many are calling the son of ACTA in the form of the Trans Pacific Partnership Agreement (TPP). The USTR has shown what it's learned from the ACTA negotiations: which is that it can absolutely get away with unprecedented levels of secrecy. It has no problem sharing details with industry representatives, but the public and consumers who will be most impacted by the intellectual property rules found in TPP are kept completely away. However, as with ACTA, there are leaks. KEI has been able to get a leaked version of the current proposal from the USTR , and as we'd been hearing, it really is another industry wish-list of stricter anti-consumer intellectual property rules, that go well beyond current US law. This is the entertainment industry and the pharma industry trying to bypass the actual law-making process and using "friends" within the USTR to get such rules in place via secretive, nondemocratic, treaty making processes. It's really a sickening display of crony capitalism and regulatory capture at work. Anyone working in the USTR should be ashamed of this document.H H H H H H

The early reports on TPP was that the USTR would only consider ratcheting up intellectual property laws to more draconian states. It would not even consider the idea of decreasing the already too strict levels of intellectual property laws. It also would not bother with increasing consumer protections or important exceptions to stronger intellectual property

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law -- even if it's been shown that those exceptions have a much greater impact on the economy than the IP laws themselves.H H

Some key points:

It would require that countries participating ban parallel import for any copyright holder who wants it. That is, if a copyright holder says no, countries would have to block your ability to purchase legal and authorized products in one country and import them into another. This is the so-called "grey market" which should be perfectly legal, but which many companies would like to block so they can price things much higher in some countries.H H

It would require criminal enforcement for certain cases of circumventing DRMeven when there's no copyright infringement, going beyond existing treaties even when there's no copyright infringement. There are some exceptions, but rather than allow countries to determine their own exceptions, it defines the exceptions and actually says countries cannot go beyond those. It would impose liability on ISPs for dealing with infringing works that goes well beyond the DMCA. Yes, Hollywood may finally be able to force ISPs to act as their personal business model cops -- something they've been unable to do in the US. Along those lines, there would be "legal incentives" for ISPs to go above and beyond that in helping copyright holders. Forget privacy. ISPs would be required to identify users on request, going well beyond existing law. Expand what is considered patentable, going in the opposite direction of what's needed. Most troubling, it would allow patents on inventions even if the inventions do "not result in the enhancement of the known efficacy of that product." This seems to go against the very purpose of patent law, but the USTR has already shown it couldn't care much less than actually obeying the Constitutional underpinnings of patents or copyright law. Continues the troubling and problematic idea that patents must be assumed valid, even if they were only briefly reviewed. A requirement to forbid third party opposition of patent applications. This is particularly ridiculous. Allowing third parties to oppose patent applications (as is allowed with trademarks) would certainly help prevent some really bad patent applications from getting through. How can the USTR justify not allowing such a basic concept of letting third parties point out bad patents before they're

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approved. Especially when you combine this with the "presumption of validity" in patents once granted, it looks like the USTR is trying to increase the rubber stamping of patent approvals. It's basically a checklist of how to make both copyright and patent law even more antiinnovation. It's pretty much a travesty. No wonder the USTR didn't want this to get out. It's a joke, and they must have known that anyone who actually understands what this really means would laugh at this. That must be why the document is declared classified until four years after the TPP is agreed upon. Declassify on: Four years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations. * This document must be protected from unauthorized disclosure, but may be mailed or transmitted over unclassified e-mail or fax, discussed over unsecured phone lines, and stored on unclassified computer systems. It must be stored in a locked or secured building, room, or container. Oh yeah, as for things like consumer protections or safeguards for competition? KEI correctly summarizes that they are "weak, meak or missing." That's because this document isn't about enabling competition, innovation or consumer benefit. It's about helping out a few legacy companies who don't want to compete, and who have plenty of job openings ready for the folks involved in these negotiations down the road.H H

If you find this to be a disgusting display of regulatory capture, done in secret, for the benefit of a few companies, against the basic principles of the free market and consumer rights, you should speak up. The EFF has put together details of which elected officials should be contacted to pressure the USTR to open up these proceedings and to hear from the public on their proposal. They've also set up a form to let you contact your elected official, though I recommend you write your own version of any letter, rather than sticking with the boilerplate. None of my elected representatives are on the target list, but if yours are, please contact them.H H

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Son of ACTA: meet the next secret copyright treaty By Nate Anderson | Published 10 months ago

So many countries in need of the Digital Millennium Copyright Act, so little time! The US government, still trying to secure final passage for the drafted-in-secret Anti-Counterfeiting Trade Agreement (ACTA), has already turned its attention to a new multilateral trade agreement that will bring the wonders of the DMCA to countries like Australia, Brunei, Chile, Singapore, Malaysia, and Vietnam. The new Trans-Pacific Partnership (TPP), like the ACTA before it, had its intellectual property chapter drafted by the US. Once again, the chapter was drafted in secret and has been classified for at least four years after negotiations end. The agreement exports (nearly verbatim) the DMCA's rules on digital locks, ISP liability, and subscriber disconnections, with a few extra goodies on the side.

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TPP has been in the drafting stage for some time, but the US intellectual property chapter (PDF) only leaked yesterday. Canadian law professor Michael Geist calls it "everything [the US] wanted in ACTA but didn't get." "For example," he says, "the digital lock rules are the US DMCA, complete with [the] exact same exceptions (no more, no less). The term of copyright matches the US term of life of the author plus 70 years, beyond the Berne requirement and Canadian law. The ISP provisions including a copy of the US notice-and-takedown system as well as provisions that go beyond US law. In other words, the US envisions using the TPP to export its copyright law to as many countries as possible while creating backdoor changes to its own domestic laws." The draft contains only a "placeholder" section for limitations and exceptions such as fair use, but it contains plenty of detail on enforcement. Every TPP country must create "legal incentives for [Internet] service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials." ISPs must cut off access to "repeat infringers" of copyright. And bypassing DRM is only permissible for good-faith security and privacy research, or if you run a library. The chapter requires criminal penalties against anyone who uses "an audiovisual recording device to transmit or make a copy of a motion picture In a public motion picture exhibition facility. All countries must provide a "making available" right to copyright holders, such that simply offering a file through BitTorrent would be grounds for a lawsuit even if no one downloaded the file. Boxes meant "primarily" for descrambling cable and satellite transmissions would be illegal and subject to criminal penalties. Any country could adopt tougher copyright and patent penalties than those in the TPP, but no signatory could do anything less. This follows a consistent international pattern in which protection and enforcement standards are always mandatory, while exceptions and limitations are usually optional. Knowledge Ecology International (KEI), which obtained the leaked document, also notes that "copyright damages shall consider the suggested retail price or other legitimate measure of value submitted by the right holder" in court cases. And all countries must set up a process to identify "Internet users for any ISP, going beyond US case law." Calling for Congress While KEI has numerous concerns about the content of the leaked chapter, it has a larger concern about the process by which such chapters are drafted and negotiated. As with the ACTA, by the time the negotiators release a text for public comment, few major changes are still possible. "The document has been distributed to all member states participating in the TPP negotiations, so it is not secret from any of the parties in the negotiations. The document may also be subject to review by the hundreds of corporate insiders who serve on USTR [US Trade Representative] advisory board. It is, however, secret from the taxpayers and voters who live in the United States, and people everywhere who are going to live under the new norms "KEI objects to the policy of making the negotiating text of intellectual property agreements secret, particularly when the documents are distributed to all parties in a negotiations, and thus are only secret from the public. The Congress needs to intervene and require that such texts be made public routinely."

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TRANS-PACIFIC

STRATEGIC ECONOMIC PARTNERSHIP

AGREEMENT

PREAMBLE The Governments of Brunei Darussalam, the Republic of Chile, New Zealand and the Republic of Singapore, (hereinafter referred to collectively as the Parties or individually as a Party, unless the context otherwise requires), resolve to: STRENGTHEN the special links of friendship and cooperation among them; ENLARGE the framework of relations among the Parties through liberalising trade and investment and encouraging further and deeper cooperation to create a strategic partnership within the Asia - Pacific region; CONTRIBUTE to the harmonious development and expansion of world trade and provide a catalyst for broader cooperation at international forums; CREATE an expanded and secure market for the goods and services in their territories; AVOID distortions in their reciprocal trade; ESTABLISH clear rules governing their trade; ENSURE a predictable commercial framework for business planning and investment; BUILD on their respective rights and obligations under the Marrakesh Agreement establishing the World Trade Organization and other multilateral and bilateral agreements and arrangements; AFFIRM their commitment to the Asia Pacific Economic Cooperation (APEC) goals and principles; REAFFIRM their commitment to the APEC Principles to Enhance Competition and Regulatory Reform with a view to protecting and promoting the competitive process and the design of regulation that minimises distortions to competition; BE MINDFUL that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development and that closer economic partnership can play an important role in promoting sustainable development; ENHANCE the competitiveness of their firms in global markets; FOSTER creativity and innovation, and promote the protection intellectual property rights to encourage trade in goods and services among the Parties;

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STRENGTHEN their strategic economic partnership to bring economic and social benefits, to create new opportunities for employment and to improve the living standards of their peoples; UPHOLD the rights of their governments to regulate in order to meet national policy objectives; PRESERVE their flexibility to safeguard the public welfare; ENHANCE their cooperation on labour and environmental matters of mutual interest; PROMOTE common frameworks within the Asia Pacific region, and affirm their commitment to encourage the accession to this Agreement by other economies; HAVE AGREED as follows:

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CHAPTER 1 INITIAL PROVISIONS

Article 1.1: Objectives 1. This Agreement establishes a Trans-Pacific Strategic Economic Partnership among the Parties, based on common interest and on the deepening of the relationship in all areas of application. 2. This Agreement covers in particular the commercial, economic, financial, scientific, technological and cooperation fields. It may be extended to other areas to be agreed upon by the Parties in order to expand and enhance the benefits of this Agreement. 3. The Parties seek to support the wider liberalisation process in APEC consistent with its goals of free and open trade and investment. 4. The trade objectives of this Agreement, as elaborated more specifically through its principles and rules, including national treatment, most-favoured- nation treatment and transparency, are to: (a) encourage expansion and diversification of trade among each Partys territory; eliminate barriers to trade in, and facilitate the cross-border movement of, goods and services among the territories of the Parties; promote conditions of fair competition in the free trade area; substantially increase investment opportunities among each Partys territory; provide adequate and effective protection and enforcement of intellectual property rights in each Party's territory; and create an effective mechanism to prevent and resolve trade disputes.

(b)

(c) (d)

(e)

(f)

Article 1.2: Establishment of the Free Trade Area The Parties to this Agreement, consistent with Article XXIV of the General Agreement on Tariffs and Trade 1994 and Article V of the General Agreement on Trade in Services, which are part of the WTO Agreement, hereby establish a free trade area.

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CHAPTER 2 GENERAL DEFINITIONS

Article 2.1: Definitions of General Application For the purposes of this Agreement, unless otherwise specified: Agreement means the Trans-Pacific Strategic Economic Partnership Agreement; APEC means the Asia - Pacific Economic Cooperation; Commission means the Trans-Pacific Strategic Economic Partnership Commission established under Article 17.1 (Establishment of the Strategic Economic Partnership Commission); customs administration means the competent authority that is responsible under the laws of a Party for the administration of customs laws, regulations and policies, and (a) in relation to Brunei Darussalam means the Royal Customs and Excise Department; in relation to Chile means the National Customs Service of Chile; in relation to New Zealand means the New Zealand Customs Service; and in relation to Singapore means the Singapore Customs;

(b) (c)

(d)

customs duty includes any duty or charges of any kind imposed in connection with the importation of a good, and any surtaxes or surcharges imposed in connection with such importation, but does not include: (a) charges equivalent to an internal tax imposed consistently with GATT 1994, including excise duties and goods and services tax; fees or other charges that (i) are limited in amount to the approximate cost of services rendered, and do not represent a direct or indirect protection for domestic goods or a taxation of imports for fiscal purposes; and

(b)

(ii)

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(c)

any anti-dumping or countervailing duty applied consistently with the provisions of Article VI of GATT 1994, the WTO Agreement on the Implementation of Article VI of GATT 1994, and the WTO Agreement on Subsidies and Countervailing Measures;

Customs Valuation Agreement means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement; days means calendar days; enterprise means any corporation, company, association, partnership, trust, joint venture, sole-proprietorship or other entity constituted or organised under applicable law, regardless of whether or not the entity is organised for profit, privately or otherwise owned, or organised with limited or unlimited liability; enterprise of a Party means an enterprise constituted or organised under the law of a Party; existing means in effect on the date of entry into force of this Agreement for a Party; GATS means the General Agreement on Trade in Services, which is part of the WTO Agreement; GATT 1994 means the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement; goods of a Party means domestic products as these are understood in GATT 1994 or such goods as the Parties may agree and includes originating goods of a Party; goods and products shall be understood to have the same meaning unless the context otherwise requires; Harmonized System (HS) means the Harmonized Commodity Description and Coding System administered by the World Customs Organisation, including its General Rules of Interpretation, Section Notes and Chapter Notes, as adopted and implemented by the Parties in their respective tariff laws; heading means the first four digits in the tariff classification under the Harmonized System; measure includes any law, regulation, procedure, requirement or practice;

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national means a natural person who has the nationality of a Party according to Annex 2.A or a permanent resident of a Party; originating means qualifying under the rules of origin set out in Chapter 4 (Rules of Origin); person means a natural person or an enterprise; person of a Party means a national or an enterprise of a Party; producer means a person who grows, raises, mines, harvests, fishes, captures, gathers, collects, breeds, extracts, hunts, manufactures, processes, assembles or disassembles a good; preferential tariff treatment means the customs duty rate applicable to an originating good, pursuant to the Parties' respective Tariff Elimination Schedules set out in Annex I; Safeguards Agreement means the Agreement on Safeguards, which is part of the WTO Agreement; subheading means the first six digits in the tariff classification under the Harmonised System; territory means for a Party the territory of that Party as set out in Annex 2.A; WTO means the World Trade Organisation; WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on April 15, 1994.

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Annex 2.A Country-Specific Definitions

For the purposes of this Agreement, unless otherwise specified: natural person who has the nationality of a Party means: (a) with respect to Brunei Darussalam, a subject of His Majesty the Sultan and Yang Di-Pertuan in accordance with the Laws of Brunei; with respect to Chile, a Chilean as defined in Article 10 of the Constitucin Poltica de la Repblica de Chile; with respect to New Zealand, a citizen as defined in the Citize