The Trans-Pacific Partnership: Intellectual Property, Investor-State Dispute Settlement, and the Environment
The Centre for Intellectual Property and Policy welcomes Dr Matthew Rimmer (Australian National University College of Law) for the first of its CIPP Speaker’s Series 2014-2015
The Trans-Pacific Partnership (TPP) is a highly secretive and expansive free trade agreement being negotiated between the US and eleven Pacific Rim countries, including Australia and Canada.
This presentation provides a critical evaluation of key chapters of the TPP - including the intellectual property chapter; the investment chapter; the environment chapter, and the climate change text.
A draft of the intellectual property chapter of the TPP was leaked by WikiLeaks in November 2013. Julian Assange warned: ‘If instituted, the TPP’s IP regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons. If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs.’
The draft chapter promoted stronger, longer copyright protection – with a Mickey Mouse copyright term extension; tough obligations on digital locks and technological protection measures; and harsh civil and criminal penalties for enforcement. The draft chapter has significant obligations for patent law and data protection for biologics.
There is also an expansive approach taken to the protection of well-known trademarks, and a push for criminal penalties and procedures for disclosure of trade secrets.
There has been much controversy over the inclusion of an Investor-State Dispute Settlement (ISDS) mechanism in the TPP. In Australia, there has been much controversy over Philip Morris challenging Australia’s plain packaging of tobacco products under an investment agreement with Hong Kong. Senator Peter Whish-Wilson has put forward a bill in the Australian Senate to ban the inclusion of investor-state dispute settlement clauses in trade agreements. In Canada, there has been an uproar over the action taken by Eli Lilly against Canada under an ISDS clause in NAFTA over drug patents. Likewise, the action by Lone Pine against Canada under an ISDS clause in NAFTA over Quebec’s fracking moratorium has received international attention.
The US Trade Representative maintained that the US has pushed for "a robust, fully enforceable environment chapter in the TPP", and Andrew Robb, the Australian Trade and Investment Minister, has vowed that the TPP will contain safeguards for the protection of the environment. But on 15 January 2014, WikiLeaks released the draft Environment Chapter of the TPP — along with a report by the Chairs of the Environmental Working Group. The agreement appears an exercise in greenwashing. Julian Assange, WikiLeaks' publisher, said the leak showed "The fabled TPP environmental chapter turns out to be a toothless public relations exercise with no enforcement mechanism." Far from being an ambitious 21st century agreement, the TPP provides little in the way of environmental protection of land, water, air, or the climate.
Dr Matthew Rimmer is an Australian Research Council Future Fellow. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University. He is a member of the ANU Climate Change Institute.
He is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies.
He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, and Intellectual Property and Emerging Technologies: The New Biology.
Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works.