The TPP and the ghosts of treaties past

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

The TPP and the ghosts of treaties past

Yesterday, Wikileaks released what is purported to be a negotiation copy of the IP chapter of the Trans-Pacific Partnership (TPP). As the opposition mobilises, can the TPP avoid ACTA’s fate?

Within 24 hours, NGOs and mainstream news - from the Electronic Frontier Foundation to Knowledge Ecology InternationalThe 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).

tpp20singapore.jpg

TPP negotiators in Singapore. Credit: Singapore Ministry of Trade and Industry

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 democratic societies.

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 transparency concerns.

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 of the Novartis decision that holds that new forms of known substances are not patentable unless they show enhanced efficacy.

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 day.

The full text of the leaked draft can be found here.

more from across site and SHARED ros bottom lb

More from across our site

As Marshall Gerstein celebrates its 70-year anniversary, Jeffrey Sharp, managing partner, reflects on lessons that shaped both his career and the firm’s success
News of two pharma deals involving Novo Nordisk and GSK and a loss for Open AI were also among the top talking points
Howard Hogan, IP partner at Gibson Dunn, says AI deepfakes are driving lawyers to rethink how IP protects creativity and innovation
Vivien Chan joins us for our ‘Women in IP’ series to discuss gender bias in the legal profession and why the business model followed by law firms leaves little room for women leaders
Partner Jeremy Hertzog explains how his team worked through a huge amount of disclosure from Adidas and what victory means for the firm
Evarist Kameja and Hadija Juma at Bowmans explain why a new law in Tanzania marks a significant shift in IP enforcement
In the wake of controversy surrounding Banksy’s recent London mural, AJ Park’s Thomas Huthwaite and Eloise Calder delve into the challenges street artists face in protecting their works and rights
Alex Levkin, founder of IPNote, discusses reshaping the filing industry through legal tech, and why practitioners’ advice should stretch beyond immediate legal needs
Cohausz & Florack, together with Krieger Mes & Graf von der Groeben, has taken action against Amazon on behalf of three VIA LA licensors
In the fourth episode of a podcast series celebrating the tenth anniversary of IP Inclusive, we discuss unconscious bias in the IP workplace and how to address it
Gift this article