November 19, 2013 11:17AM

Intellectual Property in Trade Agreements at a Crossroads

Last week, the big news in the trade agreement arena was the leak of a draft text on intellectual property (IP) in the Trans Pacific Partnership (TPP) talks. Tim Lee of the Washington Post (and formerly a Cato adjunct scholar) explains what’s in it:

The leaked draft is 95 pages long, and includes provisions on everything from copyright damages to rules for marketing pharmaceuticals. Several proposed items are drawn from Hollywood’s wish list. The United States wants all signatories to extend their copyright terms to the life of the author plus 70 years for individual authors, and 95 years for corporate‐​owned works. The treaty includes a long section, proposed by the United States, requiring the creation of legal penalties for circumventing copy‐​protection schemes such as those that prevent copying of DVDs and Kindle books.

The United States has also pushed for a wide variety of provisions that would benefit the U.S. pharmaceutical and medical device industries. The Obama administration wants to require the extension of patent protection to plants, animals, and medical procedures. It wants to require countries to offer longer terms of patent protection to compensate for delays in the patent application process. The United States also wants to bar the manufacturers of generic drugs from relying on safety and efficacy information that was previously submitted by a brand‐​name drug maker — a step that would make it harder for generic manufacturers to enter the pharmaceutical market and could raise drug prices.

While the critics pounced, defenders defended. Here’s the MPAA:

What the text does show … is that despite much hyperbole from free trade opponents, the U.S. has put forth no proposals that are inconsistent with U.S. law.

In response to this statement, it is worth noting two things. First, many of the critics of this IP text are not “free trade opponents.” They simply oppose overly strong IP protections. Many of them are actually for free trade, or at least not actively against it. Second, while these proposals may not be inconsistent with U.S. law, that doesn’t make them good policy.

I have a feeling that the IP aspect of the TPP talks is going to be very important for the future of IP in trade agreements. IP was kind of slipped into trade agreements quietly back in the early 1990s. But the recent backlash has been strong. How the TPP fares politically here in the U.S. — if and when negotiations are completed — could tell us a lot about what the future holds for IP in trade agreements.