Wikileaks’ Latest — Draft IP Chapter in Major Trade Agreement

Wikileaks has made another big splash yesterday — not about spying, but about a multinational trade agreement currently being negotiated. Wikileaks published a draft chapter on intellectual property that is part of the Trans-Pacific Partnership  Agreement (TPP), now being negotiated with 12 countries — Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand, and Brunei Darussalam.

The 95-page chapter, as a negotiating document, includes proposed provisions and language on a broad range of intellectual property issues, including copyrights, trademarks, patents, pharmaceuticals, and the Internet. The chapter also includes enforcement mechanisms for violations of the agreement. Individual countries’ initials next to the provisions or words in brackets show which countries support or oppose the particular language.

It’s a difficult document to parse, as many of the provisions reference other agreements and treaties, particularly the Agreement on Trade Related Aspects of Intellectual Property Rights, commonly known as TRIPS, which is administered by the World Trade Organization.

Intellectual property rights are likely to continue to be a difficult issue for the 12 countries to negotiate, as some countries are at the leading edge of technological developments, while others are hardly players.  However, some of the developing countries are pushing for intellectual property rights in plant varieties — likely to be a contentious issue as well.

While few commentators at this stage have produced substantive comments on the leaked draft, almost all media reports refer to the trade negotiations as being “secret,” and “secretively negotiated.” Some even assert that only a few people in each country are privy to the draft documents. That’s actually not true.  While indeed the draft documents are confidential, meaning that a security clearance is needed in the U.S. to have access to them, currently some 700 cleared citizen advisors to the U.S. Trade Representative can review the drafts and comment. In fact, the 26 USTR advisory committees have a statutory obligation to file comments on proposed trade agreements after they have been negotiated. [Full disclosure: I serve on the USTR’s Trade and Environment Policy Advisory Committee.]

Also, USTR staff regularly consult with several House and Senate committees with primary trade responsibility, such as members and staff of the House Committee on Ways and Means and the Senate Committee on Finance. State Department, Commerce Department, and other officials are also part of the consultations.

Some may argue that restricting access to the documents while they are being negotiated doesn’t make any sense. Others will note that the negotiations are fluid — that the diplomats are laying out their preferred positions and expect to get some push-back from the other parties, with compromise being the objective. As in poker, though, one doesn’t wish to give one’s cards away early on.

The next meeting of the top negotiators from the 12 countries is scheduled for next week in Salt Lake City. And it’s likely to be lively.