It must have been really nice to have worked as an IP expert for the US Trade Representative (USTR) during the 1990s. Almost everything they proposed would become law. The global maximalist agenda had the large international institutions on its side. The golden age of international maximalism saw the creation of the WTO, the TRIPS Agreement, and the WIPO Copyright treaties, followed by an unprecedented change in national laws to adopt such efforts. However, at the turn of the century, the international political pendulum swung in the other direction, the over-reach of the IP industries meant that policies were enacted that went against the best commercial interest of several developing countries. If you also take into account the access-to-medicines debacle, as well as the emergence of the Internet and widespread file-sharing, you will see that maximalism did not have a good start in the new Millennium.
But then the international institutions changed. The WTO and WIPO used to be places where large IP-producing countries used to hold more sway, and it was easier to pass international agreements. However, as large developing countries started finding their voice, it became harder for IP owner countries to push their agendas. The culmination of this situation was the failure to approve the WIPO Broadcast Treaty in 2007, which was a big blow for the content industries. This Treaty was defeated by a combination of web activists, the tech industry and developing countries, and has to be taken as the final nail in the coffin for the quasi-unilateral control of IP owners of the international institutions.
I do not wish to be ideological in this assessment. There are few countries who are net IP exporters, and the US is still the one with the biggest stake in the creative industries (hence its interest in expanding IP protection and exporting such expansion). The USTR is not a mindless agency pushing for more IP protection to fulfill an evil agenda; it is doing so because it is in its best commercial interest. As such, for the last decade, the USTR has been engaged in a clear strategy that tries to export stronger IP protection around the world, because at the moment, anything that protects IP in a given territory will undoubtedly favour its balance sheet. TRIPS-plus agreements, and other bilateral efforts, have to be seen in that light.
Several other things have been happening at the international IP institutions. Policy-making at the WTO seems to have ground to a halt after the 2001 Doha Ministerial Conference. WIPO has also been seeing some structural and political changes. The institution has become more financially independent thanks to the success of the Patent Cooperation Treaty and the domain name dispute resolution procedure, which means that they do not have to take marching orders from content owners any more. The BRIC countries have also been gaining more expertise in the area of IP, so governance at WIPO has become an issue. WIPO is more balanced, but strangely, it is also a more dysfunctional institution as a result. It is precisely the growing balance between countries that has prompted some countries interested in international maximalist agendas to try to implement their agendas through international trade treaties.
So, if you want to expand IP protection, but cannot do it at the international IP institutions, what do you do? Enter the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP).
The ACTA negotiation was riddled with compromise from the start. In retrospect, it may have been a mistake for the USTR to include countries with their own large stake in the IP world, particularly Europe and its interest in maximizing protection for geographical indications. In the end, ACTA resulted in a much more diluted agreement than what it was originally.
So now we have had some glimpses at the IP provisions contained in the TPP, and they are what ACTA could not be. While ACTA resulted in a compromise, the TPP attempts to go for broke and contains a wishlist for the content industries. This includes its own version of the Broadcast Treaty, harsher provisions against circumvention of technological protection measures, erosion of existing exceptions, the potential destruction of the first-sale doctrine, and what I can only class as an open war against intermediaries. In short, TPP reads like the frustrated collection of a department that has had more than a decade of not getting its way.
So we have interesting days ahead of us. Will TPP fall prey of the anti-SOPA brigade?
Andres Guadamuz is Vice President at Innova Technology, a software firm in Costa Rica, and Associate Director of the SCRIPT Centre for Studies in Intellectual Property and Technology Law at the University of Edinburgh, where he has also served as Lecturer in Electronic Commerce Law. For more details about some of the provisions in the TPP, see this post.
