Within 24 hours, NGOs and mainstream news - from the
Electronic Frontier Foundation to Knowledge Ecology
The Guardian to Wired - highlighted
provisions that seek to increase IP protections supposedly at
the expense of consumers and developing nations.
Much of the focus has been on copyright, such as one
provision (article QQ.G.6) looking to extend protection terms
to US levels and another that would outlaw the circumvention of
digital rights management schemes even when no infringement
would take place (article QQ.G.10).
in Singapore. Credit: Singapore Ministry of Trade and
It is worth noting that the perception that ACTA expanded
copyright liability on the internet helped to mobilise the
opposition that eventually defeated the treaty.
This impression was reinforced by the belief that the
treaty was negotiated in secrecy in a manner unbefitting
In addition to the copyright provisions, there is criticism
of sections concerning access to medicines and patents. One
section (articles QQ.E.17 to QQ.E.22) would extend data
exclusivity periods, while another (article QQ.A.5) has been
interpreted as a limitation on the rights afforded by the Doha
Declaration. Another (article QQ.E.1) being pushed forward by
US negotiators, according to
Jamie Love of KEI, would expand the patentability of
surgical methods beyond what is afforded by US law.
We learnt from ACTA
ACTA supporters were unprepared for the intensity of the
opposition, and presumably have considered how to avoid making
the same mistakes. For example, Bryan Mercurio of the Chinese
University of Hong Kong said that rather than conducting
discussions under the shroud of secrecy,
the negotiating parties should consider releasing
information more frequently in order to assuage
Some governments appear to be trying to address this issue.
Alejandro Luna of Olivares & Cía, who represents
Mexico’s R&D pharmaceutical association AMIIF,
told Managing IP that the Mexican delegation to the TPP
negotiations has made
considerable efforts to meet with stakeholders of all types
and to keep them abreast of developments.
Despite these efforts, most if not all the criticisms
directed at ACTA are being applied to the TPP as well. While
observers had previously made some educated guesses about the
provisions that would be in the TPP, the fact that the
opposition moved so quickly to analyse the leaked draft shows
that, despite claims of transparency, many still get the sense
that it is being negotiated in small rooms under a haze of
cigar smoke by nameless bureaucrats and barons of industry.
Imposing IP on developing nations
Similarly, those who claim that countries such as the US are
using such treaties to impose their own vision of IP on
developing nations will likely feel vindicated by the leaked
draft. Article QQ.E.1, which is supported by the US and Japan
but opposed by the other countries, appears to be designed to
prevent signatories from adopting their own version of
India’s section 3(d), the provision at the centre
Novartis decision that holds that new forms of
known substances are not patentable unless they show enhanced
Indeed, for all the talk of transparency, the backers of the
TPP have done a poor job mollifying these concerns. The US may
have compelling arguments for its position, but you
can’t very well make those claims if you
can’t talk about the treaty openly.
ACTA supporters lamented that their opponents were
uneducated about the facts and misunderstood the treaty, but
it’s arguable that any ignorance was exacerbated
by the lack of information made available. And at the end of
the day, that supposedly ignorant opposition carried the
The full text of the leaked draft can be found here.