The release by Julian Assange on Wikileaks of the draft Trands Pacific Partnership chapter on intellectual property – including drug patents - contains some pretty disturbing evidence about what’s still on the table. The leaked drafts pertain to the May 2014 negotiating positions and enable comparisons with the August 2013 positions that Wikileaks released last November. Wikileaks overview of the new data is available here.

It includes this observation:

The new US-tabled Article QQ.E.20 will force Parties to enact an automatic monopoly period (marketing exclusivity) for life-saving drugs, with a choice for the groups to decide for definitive inclusion within the treaty of 0, 5, 8 or 12 years. Experts state that the United States is pushing for the maximum 12 years, with the countries' Ministers to decide as the IP negotiators cannot agree on this controversial issue.

If the US is successful in their bid, or if even the alternative 8-year period comes into place, the Obama Administration will have gone back on its promise to make cancer drugs affordable, having previously pledged to reduce the monopoly period on biotech drugs from 12 to 7 years. This will mean patients needing these drugs will remain with hugely expensive medical bills for years to come.

This attempt to strengthen the patent rights of Big Pharma will be of particular concern to poorer countries struggling to afford drug treatments for communicable diseases. To mitigate such concerns, there is also parallel evidence in the May 2014 drafts of a continued push for shorter drug patent terms in poorer countries, and for longer ones in developed countries. If passed, this would mean that the cost burden of making affordable medicines more readily available in the Third World would not be borne by the drug companies, but would be transferred to developed countries, such as New Zealand.

Other elements in the draft text would impact directly on New Zealand’s ability to protect Pharmac. Though complex, it is worth slogging through:

Also new in the May 2014 text is a "drug company-friendly" version of the TRIPS agreement for compulsory licensing of vital drugs patents….. In theory, by issuing a compulsory licence, a government can authorise cost-cutting generic competition with patented drugs, in exchange for royalty payments to the patent holder. It is a key tool to promote affordable access to medicines…

Wikileaks sets out how this tool currently works within articles 30 and 31 of the existing TRIPs agreement.

Article 30 is a 3-step test that is restrictive in what it grants exceptions for, and is open to interpretation with regards to procedures for doing these tests. Article 31 (referred to in the August 2013 text and now gone) is the one generally used on all compulsory licensing for HIV and cancer drugs. Whilst it is more restrictive, it is limited to cases where patent holders are paid, so as long as a drug qualifies (as most HIV and cancer drugs do) it is possible to get an exception to the patent held by big pharmaceutical companies, breaking Big Pharma's monopoly on life-saving drugs.

Within the TPP however, it is now being proposed to scrap this mechanism:

However, the new version of the text of the TPP IP Chapter has deleted the option to use this assessment procedure, requiring many judgement calls on aspects such as how this might "prejudice" the patent holder. This will mean that the procedure is more restrictive and open to interpretation, and therefore lobbying and manipulation.

As a result, this could further expose Pharmac’s internal decision making to legal challenge, in the name of the greater ‘transparency’ that Trade Minister Tim Groser seemed willing to unilaterally concede in statements he made just before the Auckland round of the TPP, in late 2012. The dangers posed to Pharmac’s operations by all of this benign sounding ‘transparency’ were spelled out in this Werewolf article.

There is some good news as well. The extent of bracketing in the draft text shows that in this chapter – as in so much else within the TPP – the big issues still largely remain deadlocked. On the evidence of the May 2014 draft, New Zealand has been pushing back against some of the IP provisions being promoted by the US and Japan. However, the trade-off for moving on IP that would definitely entice the Key government and its TPP negotiating team would be if there was any movement on greater access to Asian agricultural markets, particularly for our dairy exports. On the weekend, the Japanese media reports on the TPP-related Japan/US bilateral talks included a tid-bit of information of direct interest on that score to New Zealand:

The two sides tried to achieve a breakthrough on thorny issues such as Japan’s market-opening measures for agricultural products and bilateral automobile trade ahead of a ministerial meeting for all 12 states in the TPP negotiations in Sydney later this month.

According to informed sources, the United States asked Japan to eliminate import tariffs on part of dairy products, one of Japan’s five key [farm trade] categories. (My emphasis.]

Even for key items that Washington has broadly agreed to let Japan keep tariffs, such as beef, U.S. negotiators are seeking sharp tariff cuts.

So, on the brink of the TPP round due to kick off in Canberra and Sydney, the US has been trying to wrest a partial concession on dairy trade from Japan, presumably in order to sweeten the pot for New Zealand. The TPP may still be something of a mirage, but it is a decidedly ugly one.

Library Love
Talking of texts, what about books? Kimya Dawson is an acquired taste. Many of her songs are so desperately cute, they’re the aural equivalent of eating the whole darn bag of chips. Somewhat surprisingly, her recent collaborations with Aesop Rock have been no exception. (They do a song called “ Delicate Touch’ that uses the “Delicate” cycle at the laundromat as a metaphor for her entire emotional life. Awww. ) On the upside, she and Aesop R. also do this little hymn to libraries.

ENDS

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