Consumers' digital rights are threatened by this Pacific trade deal

This week's leak of a recent version of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP) has sparked much outrage over the maximalist copyright and patent policies that the United States government, in particular, is seeking to impose on countries around the world, says CI's digital expert Jeremy Malcolm.   

Using the cover of trade negotiations, which were once used to negotiate mutual reductions in import tariffs, the TPP seeks to make significant, permanent changes to the intellectual property laws and policies of the countries of the Asia-Pacific region – not to mention the many other significant legal and regulatory changes contained in other chapters of the agreement.

These changes would limit the ways that consumers can use digital products, and allow copyright owners to meddle with our access to the Internet, whilst jacking up the prices of IP-intensive goods such as books and medicines.

The United States is not the only country pushing anti-consumer intellectual property rules – for example Mexico wants a life plus 100 year copyright term, which would leave Franz Kafka's works still under copyright today, and Australia is bucking the recommendations of its own IT pricing inquiry in pushing for tougher limitations on the circumvention of digital locks.

Whilst there may have been some justification in negotiating tariff rates behind closed doors, there is no justification to change intellectual property laws in the same opaque and unaccountable fashion.

These are issues on which the public has a right to know what is being negotiated on their behalf and to participate in shaping the negotiations.

There remains a good case that the TPP, as a whole, ought to be rejected regardless of its content unless there is a radical improvement in the transparency and accountability of the negotiation process.

But at the end of the day, there are powerful commercial and political forces behind the TPP, and significant stakes beyond just intellectual property, which might just push the agreement over the line.

If that happens, we need to pay a lot more attention to the good (or at least, the less bad) proposals in the IP chapter of the TPP, and to support those as a fallback position to the rejection of the whole deal.

In this context, a point that many commentators have missed is that most of the other countries negotiating the agreement are pushing back against the most extreme proposals with much more balanced rules, some of which are actually good for consumers.

These contributions could be the saviour of the TPP for consumers if, despite our wishes, the agreement is pushed through regardless.

For example there are innovative proposals from Chile, Vietnam and Peru to uphold the public domain, a Mexican proposal to preserve parties' flexibility to refuse recognition of software patents, and alternative and more flexible approaches to the vexed questions of digital locks and ISP liability.

The TPP doesn't deserve to succeed – but if it will anyway, we need to take a more nuanced approach to it than just opposing the text's most extreme positions.

We also need to recognise those provisions that could serve consumers relatively well.

Whilst maintaining our call to stop the TPP if the negotiators won't let us be a part of it, we can also, quite consistently with that, demand that any new treaty or agreement should be based around provisions that are in the broad public interest rather than narrow corporate interests – and there are some such provisions in the leaked TPP text, that deserve qualified support from the consumer movement.

The Trans-Pacific Partnership threatens hard-won consumer rights in Asia and the Americas

CI’s Jeremy Malcolm looks at how the Trans-Pacific Partnership is dismantling a slew of consumer rights from intellectual property laws to food labelling to labour standards.

 

As a global organisation, much of the work that Consumers International (CI) does for and through its members is done at the international level. By setting consumer policies that apply to many countries, we ensure that no country is left behind when best practices are being set. (A good example of this is our work on the ISO 26000 standard on social responsibility.) 

But rather than being a race to the top, sometimes globalisation can be a race to the bottom, in which national laws to protect the public interest are sacrificed on the altar of free trade.

An example of this is found in the Trans-Pacific Partnership (TPP), an intergovernmental agreement currently under negotiation that threatens to reduce hard-won health, privacy, consumer protection, environmental and labour standards in 11 negotiating countries around the Asia Pacific region.

Here are just some of the areas of the TPP text that are of concern to consumers:

Food and labelling

The existing trade disciplines of the World Trade Organisation (WTO) already limit national and consumer sovereignty when it comes to food. For example, under WTO rules, the European communities were punished for prohibiting imports of beef from cows laced with hormones, because the health risks of the use of artificial hormones on cattle had not been scientifically established.

As a result, Europe was ordered to compensate the United States for the lost imports of hormone-laced beef that European consumers didn't want! Under the TPP, American industry is asking for even tougher powers to limit other countries from regulating products such as genetically-modified food, pesticides and additives.

Intellectual property

Perhaps the most controversial chapter of the TPP, the intellectual property chapter, would also elevate intellectual property protection and enforcement standards above the already-high levels set by the WTO, to the detriment of consumers.

For example, many countries will be required to extend their length of copyright protection by 20 or more years, resulting in works from early last century being locked out of the public domain for decades. Parallel importation will also be restricted, allowing global firms to profiteer.

An Australian parliamentary study shows that such restrictions increase the cost of music downloads in that country by more than 50% compared to the USA.

The right to bypass digital locks in order to exercise fair dealings with copyright works will also be curtailed, and both civil and criminal penalties for copyright infringements will almost certainly balloon.

Investor-state dispute settlement

Under investor-state dispute settlement rules proposed for the TPP, big business can sue governments in an international commercial tribunal, for introducing new laws - such as consumer protection laws - that damage their businesses.

For example, the tobacco giant Philip Morris is currently suing Australia under a similar free trade agreement between Australia and Hong Kong, over Australia's introduction of a law requiring plain packaging of cigarettes.

Even though Australia's High Court already rejected the Philip Morris claim, the company is still pursuing its case in the international tribunal. Unsurprisingly, Australia has rejected an ‘investor-state disputes settlement provision’ for the TPP - but the USA is still insisting upon it.

E-Commerce

The TPP is proposing to adopt and strengthen the problematic APEC cross-border privacy rules, which were developed without adequate input from consumer or privacy groups. These rules provide a streamlined process for the exchange of consumers' private information across borders, possibly into countries where privacy protection is significantly more lax. 

As part of this, TPP is proposing to outlaw government policies that require consumers' information to be physically hosted on local servers. The intent is to allow web companies from the United States to host such private data, even though US law notoriously allows warrantless wiretapping and surveillance of its citizens.

This unnerving practice will now extend across the region if this TPP proposal makes it through.

Consumer groups shut out

There are probably many other areas of the text that are of concern to consumers too. But we can only say "probably", because the text has not been released. We only know what we do about the agreement because two of its 20 chapters have been leaked, and from public statements by negotiators and lobbyists. 

In particular, the US government has claimed that the "Competition" and "E-Commerce" chapters both include text on consumer protection, and there also exists a chapter on "Financial services" that is doubtless of relevance to consumers. Yet CI, and all other consumer organisations, have been denied access to these texts, whilst cleared corporate lobbyists have been allowed to see them.

CI’s involvement

CI attended the most recent meeting of the TPP negotiators in Virginia, USA, earlier this month with our member ODECU from Chile, where we were allowed a token 10-minute presentation slot, and a table from which to distribute publications.

Whilst this is a pitiful excuse for public engagement, the meetings have provided a useful mobilisation point for civil society, and are an occasion for well-connected NGOs to arrange informal private meetings with negotiators. (CI attended such a meeting in Virginia.)

The next TPP negotiation meeting will be taking place in New Zealand from 3 to 12 December 2012, and we are again inviting interested CI members to participate, with coaching and support from CI.

If you are interested in hearing more, and are from Australia, Brunei Darussalam, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States or Vietnam, contact me or Farooq Ahmed Jam from CI's Office for Asia Pacific and the Middle East. 

We will provide you with a detailed briefing document that we have prepared, and put you in touch with your country's negotiators. 

Even if you can't attend the next negotiating session, there are still many ways in which you can have an impact, such as talking with your negotiators, and linking up with other NGOs in your country who are already engaged in TPP advocacy.

With the agreement slated for completion in 2013, now is the time for CI members from the Asia-Pacific region to defend themselves against the TPP's many threats to consumers.