WikiLeaks and the Implications of the Trans-Pacific Partnership

October 15, 2015

You have probably heard about the Trans-Pacific Partnership (“TPP”) in the news lately, but the TPP has been in the works for the last five years. The TPP would create a trade-agreement between 12 countries including the United States, Australia, Canada, Japan, Malaysia, Mexico, Peru, Vietnam, Chile, Brunei, Singapore, and New Zealand. Together, these countries make up 40% of the world’s GDP. It is notable that China is not in this agreement, and it is unclear whether China could, or would want to, join the TPP in the future. This proposed trade agreement has become increasingly controversial as details have been released by WikiLeaks. The limited information the public has learned about the TPP has been debated and this has spilled over into other areas, including politics. With the presidential election looming in 2016, the TPP has become a buzzword for Democrats and Republicans. Some presidential candidates have changed their stance on the issue, while others are adamantly for, or against, the TPP. Meanwhile, President Obama has made passing the TPP a primary goal before leaving office in 2016, and he has found some unlikely allies in Congressional Republicans.

Politics aside, the TPP matters for everyday consumers as it will have a significant impact on intellectual property and this could influence everything from the cost of medicine to how copyright law will be enforced across international borders.

The Executive Brach is proudly claiming that the TPP would level the playing field for American workers & American businesses. This would be made possible by eliminating more than 18,000 taxes and barriers to trade on American made products. Despite these proclaimed benefits, skeptics of the TPP point to the previous result of free trade agreements and the impact that they had on American industries. Some opponents believe that the TPP would result in more companies moving jobs out of the US and into cheaper labor markets where there would now be reduced barriers to sell outsourced products to American consumers.
In addition to these reservations, one of the biggest criticisms of the TPP is the level of secrecy that has encompassed the agreement. While it’s not unusual for trade agreements to be guarded before the details have been finalized, the potential economic impact of the TPP could result in significant changes for the involved countries and this has only added to the speculation about the deal. This is where WikiLeaks comes in. WikiLeaks released the final version of the Intellectual Property Rights Chapter on October, 9, 2015 and it has several controversial portions.
One portion of the leaked documents would extend copyright ownership to the life plus 70 years. Another part would impose harsh punishment for circumvention of digital rights management technology. The United States views on copyright are heavily influenced by a strong film and entertainment lobby and language related to copyright infringement has undergone several revisions. The agreement would force other countries to adopt the United States’ notice-and-takedown system of copyright infringement (with the exception of Canada who already has a different system in place). Awards of damages under the agreement are vague as they allow for “any legitimate measure of value” to be assessed by judges. This could result in a situation where high statutory damages may be threatened against copyright infringers, even if they are not enforceable. Few of these provisions are positive for individuals and represent significant changes to global rules on intellectual property. Since this chapter was released before the agreement has been published, there is still opportunity for changes to be made, but it might be too late as negotiations for the TPP were completed on October, 5, 2015. Furthermore, earlier this year, the Senate approved “fast track” legislation that would prevent amendments or filibusters to the TPP when it comes before the Senate. As a result, the TPP will be an all or nothing deal, and it has all of the makings to be a heavily contested battle in Congress and for the general public. It has been hinted that the full text of the TPP could be available within the next month.
WikiLeaks has created an opportunity for outside review of the TPP for what the previous five years has been a largely secretive process among various global powers. Whatever the final version of the TPP contains, at least it will now be out in the open. If the final version of the TPP is identical to the version that WikiLeaks released, it will have a significant impact on intellectual property.