What the Trans-Pacific Partnership gets wrong about intellectual property

With the final text of all 30 chapters of the Trans-Pacific Partnership (TPP) finally available, there is a lot to scrutinize. Chapters on environmental and labor standards are sure to get a lot of attention, but there is one chapter in particular that should be of concern to those concerned with innovation and freedom of expression: the chapter on intellectual property.

In recent years, the intellectual property (IP) system has been twisted beyond its original intention. Instead of providing incentives for creators, it is now a tool of media conglomerates to shut down competition and capture monopoly profits almost indefinitely. The current copyright term has been extended to the life of the author plus 70 years. Does anyone seriously believe that creative works would suddenly dry up if authors could only collect royalties for 50 years after their deaths? The continued extensions of these terms don’t help creators, they help the Walt Disney Company keep Mickey Mouse from slipping into the public domain well after the iconic rodent’s 80^th birthday.

{mosads}The result of all this is actually the stifling of innovation, where a lack of clarity over long-dead rights holders has a chilling effect on creators afraid of inviting lawsuits, and the ability to build on previous discoveries remains limited.

The IP chapter of TPP should be dismaying to would-be reformers, because instead of reining in the kudzu-like growth of America’s intellectual property system, the deal would export many of our worst laws to countries that can afford them even less than we can. Here are a few examples:

Extended Patent Lengths

Apart from codifying the “70 years after the life of the creator” copyright term for other countries, the plan also calls for extended patent lengths to compensate for regulatory review time. This mainly applies to pharmaceuticals that routinely undergo lengthy delays before being allowed to market.

While the problem of regulatory review periods is correctly diagnosed here, the solution goes in the wrong direction. We should be trying to minimize review periods rather than extending patent durations. The former results in medicine being cheaper and more readily available, the latter does the opposite. This is especially crucial in some of the partner countries where lack of access to medicine is a much more serious problem than in the United States.

Patents on New Uses of Existing Products

Another provision that keeps drug prices higher for longer allows new patents on existing products that have been only slightly tweaked. This allows companies to protect their products from competition indefinitely by making small adjustments every few years, a process known as “evergreening.” This is not a reward for genuine innovation, but a way to protect monopoly profits in perpetuity.

Presumptive Copyrights

Among the many legal stipulations in the trade deal is the presumption that a copyright exists unless it can be proven otherwise. This tilts the balance of court cases in favor of plaintiffs and will make nuisance suits easier and more profitable. It also disincentivizes content creators, who will be increasingly fearful of inadvertently infringing on a presumed copyright. This is made especially scary by the deal’s insistence on….

Criminal Penalties

Intellectual property violations have traditionally been handled as a civil matter, where the demonstration of harm could result in infringers having to pay damages. This deal calls for criminal proceedings and criminal penalties, including jail time, for copyright violations. This is presumably supposed to serve a deterrent, but surely there are better uses for our already overcrowded prisons than to clog them up with kids who downloaded a Metallica song or uploaded a TV clip to Youtube.

Civil Asset Forfeiture

Civil asset forfeiture is an insidious procedure that allows law enforcement to take property that is suspected of being involved in a crime. There’s no due process, and it only takes a suspicion for you to be robbed of your property. Once that happens, the odds of getting it back are long, to say the least, and even if you are willing to fight it, the legal costs can be overwhelming. The TPP allows civil asset forfeiture for property suspected of violating IP law.

Suspension of Imports and Exports

A similar provision allows government authorities to suspend imports and exports of anything suspected of violating IP laws. This seems especially counterproductive given that the whole point of the agreement is to promote more free trade. This provision could easily be abused, and allows the blocking of trade for political purposes with little recourse for importers and exporters.

I could go on, but I think the point is made. Exporting overly restricting IP laws to other countries is one of the major reasons why free trade advocates remain suspicious of the Trans-Pacific Partnership.

Albright is a research analyst at FreedomWorks.