TRADE NOVEMBER 14, 2013
Yesterday, Wikileaks published a draft chapter from the biggest trade agreement in years: the Trans-Pacific Partnership, a treaty between the U.S. and 11 other nations to promote free trade in the Pacific. Negotiated in secret for the past three years, the TPP covers labor regulation, health standards, the environment, and, perhaps most controversially, intellectual property—a field that the Internet has transformed but which is not yet effectively regulated internationally. What Wikileaks dropped is the TPP’s August draft of a new genre of intellectual property law—a “21st century” agreement, as its signatories have dubbed it. It shows the U.S. pushing for rules that would tighten copyright restrictions, drive up drug prices globally, and likely change the Internet forever. In many cases, it also shows other nations resisting the U.S.’s terms.
Trade negotiations have almost always been confidential. And they’ve leaked before, derailing entire treaties. TPP proposals for individual countries have also already gone public—but this document is the first to reveal the state of negotiations and show different countries’ positions and demands. It’s not pretty: the U.S. demands are draconian, and it’s the strongest negotiator in the group. But does the leak make the U.S. look so bad that it could sink the TPP? The answer, for better or worse, is probably no. Here are four key reasons why.
The leak’s biggest revelation is that U.S. demands resemble laws that Congress has struck down—and that nobody else wants rules so strict.
The Stop Online Piracy Act, which Congress rejected, reemerges in the TPP. U.S. negotiators want a law that forces ISPs to cut off anyone who receives multiple copyright infringement notices—a difficult-to-enforce policy that was one of the reasons SOPA failed. They also want to criminally prosecute small-scale for-profit copying, and to hold ISPs accountable for their users’ copyright violations. The aggression extends into other IP realms—the U.S. wants to lengthen patents on crucial drugs for diseases like cancer and HIV, for example, which would make them prohibitively expensive in poorer countries.
The chapter shows the U.S. making these demands and most other countries rejecting them—a stalemate. It’s unclear what’s happened in the months since this August draft, but the U.S. holds one crucial advantage in the negotiations: market access for less developed nations. Under the TPP, countries like Vietnam will be able to sell more shoes to Americans, said Lori Wallach, the director of Public Citizen’s Global Trade Watch, which strongly opposes the partnership. “The U.S. is sitting there like the Grand Poobah saying that if you want to sell it here, here are your rules,” she said.
The TPP talks are far along—and the public hasn’t made much fuss about them.
One former trade official familiar with the negotiations said that, at least within the talks, the leak was unlikely to change dynamics. “Everybody in the room already knows that the U.S. is isolated if the U.S. is isolated,” he said. “The people that can affect the substantive outcome... have already been a part of this process.” And they’re almost done: Obama wants to finalize the deal by the end of 2013, a deadline that is rapidly approaching.
Up until now, public opinion of the deal has generally been bland—last week The New York Times endorsed the agreement. “The hope... is that by completing deals with Europe and Pacific nations, Washington will set an example for the rest of the world to follow,” the editorial reads. Some people “are worried about provisions on intellectual property that could restrict the availability of generic medicines and grant longer copyright protections to big media companies,” it muses. But then it drops the point.
But a fuss probably isn’t going to start in the U.S. now.
When Wikileaks dropped cables that exposed U.S. diplomatic scandals, the outrage that followed was loud and clamorous. What they’ve dropped this time plays to interests closer to the organization’s heart—but not necessarily to the passions of the nation. In his press release, Julian Assange seems to realize that people don’t exactly take to the streets over IP, patents, copyright, or Internet regulation. “If instituted, the TPP’s IP regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons,” he writes. “If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs.”
This particular genre of leak fires up groups like the EFF or Anonymous, which were already invested in internet freedom causes. What the leak doesn’t do—what Wikileaks and its affiliates need to improve if “transparency” is going to effect any meaningful change—is convince huge numbers of people that these this abstract issue affects people in their daily lives. By publishing the TPP IP clause, Wikileaks politicizes it. An association with Wikileaks makes the TPP chapter more about limiting internet freedom than about extending patents on cancer and HIV drugs, driving up their prices. These are both points that the U.S. pushes for in its negotiations. The latter issue certainly matters to more people worldwide—and drums up more passion than the torrent-rights set ever did.
Maybe if another group had exposed the IP negotiations or maybe if Wikileaks wasn’t headed by Julian Assange, the fallout of these revelations would be different. Without an invested public, it doesn’t much matter if the negotiations are shrouded in mystery.
So if the TPP fails here, it probably won’t be because of Wikileaks.
In other signing countries, reaction to the leaks has been stronger, different in nature, since many of the health provisions in the TPP resemble U.S. law that can make treatment prohibitively expensive. “If you go to the Sydney Morning Herald, the headlines are all about access to medicine,” said Wallach. But in the US, the most pronounced differences are in Internet freedom—hence the focus on SOPA, rather than more tangible humanitarian concerns. That’s not to say that the health law changes in the US wouldn’t be serious—the TPP suggests we allow surgical procedures and plants and lifeforms to be patented.
But abroad, the TPP leaks shows an IP regime with health laws that resemble the United States—and countries are alarmed. In all likelihood they won’t agree to the proposed terms. It’s unclear how much ground the U.S. will have to cede: Wallach thinks that “It’s going to come down to no agreement or getting something other than what [the U.S.] has demanded.” If the United States can’t convince other nations to fold then it might just refuse to participate in the deal, and without the U.S., the treaty loses most, if not all, of its power.
Congress might also reject the deal. On the same day as the leak, 150 House Democrats released a letter asking for more transparency. “If Congress and the public are not informed of the exact terms of the agreement until the conclusion of the process,” it reads, “then any opportunity for meaningful input is lost.” Twenty-two House Republicans signed a letter to the same effect on Tuesday. But Joseph Laroski, another former official who worked on four TPP chapters, thinks there’s no chance that countries will agree to letting Congress change the terms. “I wouldn’t expect any country to close [the deal] unless they knew the U.S. was going to go to the Hill for an up or down vote.”
Ultimately, neither of these scenarios has much to do with Wikleaks at all.