The TPP is Dead, Long Live the TPP

Debora J Halbert

Associate Vice Chancellor for Academic Affairs, College of Social Sciences, University of Hawaiʻi at Mānoa

Donald Trump won the US election on a platform that included rejecting the Transpacific Partnership (TPP). Trump followed up on this campaign promise and withdrew the United States from the TPP changing the United States Trade Representative’s (USTR) website to inform viewers that the US will pursue an “America First Trade Policy.” In rejecting the TPP, Trump has flipped his own party’s position, given that free trade has traditionally been a republican supported idea. Since NAFTA, Democrats and Republicans alike have approved free trade agreements, with both President Obama and the Republican dominated Congress agreeing that the TPP was vital to shaping the future global economy. Now that the US has backed away from the TPP, it leaves the negotiating terrain open to China’s dominance.


While the TPP as a whole gives the appearance of being dead, the intellectual property (IP) provisions of the TPP are very much alive. Trump’s IP policy agenda remains unclear. However, it is likely that Trump’s own views on protecting IP and the role IP should play internationally align with those spelled out in the TPP. It is worth noting that Trump, unlike any president before, is a global brand with a keen interest in protecting his trademarks and the trademarks of his family members. Recently, China granted Trump trademark protection for his brand, something Trump had been seeking for over a decade. Thus, while the TPP is (mostly) dead, it is very likely that the IP provisions will live on.


The TPP is a plurilateral effort following in the footsteps of the myriad TRIPS plus agreements negotiated by the United States. With TRIPS as a baseline for IP protection, the US has negotiated bilateral treaties with over 40 countries to limit the flexibilities found in TRIPS and enhance protection from what TRIPS required. Among the most recent are agreements with Jordan, Singapore, Chile, Australia, Morocco, and South Korea.  Like TRIPS plus agreements, the TPP eliminates many of the flexibilities in TRIPS. IP is prioritized over free speech, access to knowledge, and public health.  While many saw TRIPS as problematic for the global south, the TPP is worse.


The possibility that the IP provisions will live beyond the TPP is cause for concern.  Commentators raised concerns that the IP provisions in the TPP would enhance the power of IP-centered industries, like the pharmaceutical industry at the expense of public health and access to knowledge.  First, the TPP increases the length of protection to life of the author plus 70 years. Such extensions do little or nothing to spur new creations because the creative work has already been done. Term extension is a way of extending the rights of copyright owners at the expense of the public domain.


Second, the TPP includes data exclusivity provisions. The goal of data exclusivity is to delay the time to market for generics and thus extend the monopoly enjoyed by the pharmaceutical industry. Instead of requiring a generic to demonstrate “bioequivalence,” generic drug companies will need to do clinical trials themselves. Such exclusivity was debated and rejected during TRIPS negotiations. In bilateral FTAs with similar data exclusivity agreements, drug prices went up. In Jordan, for example, data exclusivity increased the price of medicine by 20% from 2001 to 2009.


Third, criminal penalties for the theft of trade secrets are included for the first time. Of the penalties developed in the TPP, one of the most concerning was that the TPP allows for the destruction of anything used to create infringing copies or circumvent DRM, which could be read to include a person’s personal computer. Criminal penalties are so extensive that virtually all copyright violations would be considered crimes.


The IP sections of the TPP provide only minimal protection for the public. Like trickle down economics, the logic behind the TPP is that by helping the wealthiest IP centered industries the benefits will trickle down to the public at large. Ironically, it is likely that the IP provisions of the TPP, or something similar to them, will become central to Trump’s international IP policy. Trump’s aversion to multi- or plurilateral trade agreements in favor of bilateral ones merely shifts the focus back to TRIPS plus arrangements. How IP actually benefits the general public and artists, inventors, and other creative people whose work is subject to IP control should be central to future conversations about global IP policy. That being said, despite the end of the TPP we can expect that Trump will actively pursue IP maximalist policies and thus align with both Democratic and Republican administrations before him.  The TPP may be dead, but its IP provisions will continue to live on in numerous, potentially harmful, ways.


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