A Primer on the Trans-Pacific Partnership

Nob Akimoto

Nob Akimoto

Nob Akimoto is a policy analyst and part-time dungeon master. When not talking endlessly about matters of public policy, he is a dungeon master on the NWN World of Avlis

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23 Responses

  1. Avatar E.D.Kain says:

    Thanks, this is really helpful.Report

  2. Avatar sonmi451 says:

    In addition the USTR has pushed for stronger copyright infringement mechanisms and rules to prohibit parallel imports of copyrighted works. This system prevents New Zealand from importing cheaper DVDs of a movie from Singapore rather than buying them from the US.

    Are we talking legally-produced DVDs from Singapore, or pirated DVDs? If it’s the former, what’s the justification for the policy, and why would Singapore for example agree to this provision? Sorry for the twenty questions, I know very little about this subject 🙂 

    What’s interesting is when it comes to environmental or labor standards, the usual excuse given is the US cannot force other countries to follow its standards even in the context of FTAs. But apparently that’s not the case for intellectual property rights.Report

    • Avatar sonmi451 says:

      And this is a bit late, but it’s great to see you as a frontpager!Report

    • Nob Akimoto Nob Akimoto says:

      Legally created copies, basically.

      Though “Parallel imports” are most common in pharma (where you import the generic, licensed version from a developing country to make up for high drug prices of the standard version), it also does happen in entertainment. Things like DVD region locks are meant to make this process more difficult.

      KEI has a decent primer on the parallel imports provision for IP.

  3. Avatar DensityDuck says:

    Considering that many countries’ allow practices regarding IP that are prima facie illegal in the USA, how would you propose a trade agreement be created?

    To use an extreme example to illustrate the issue:  Let’s say that Country Z permits cannibalism.  Country Z wants to have access to the USA’s domestic market, including (among other things) provision of foodstuffs.  Should the USA not make part of the trade agreement a ban on the permission of cannibalism, to avoid the possibility that the product of a practice considered extremely harmful in the USA would be sold in the US market?

    Alternatively, the trade agreement could be written as “Country Z may not sell foodstuffs to USA purchasers”, but that seems to fall under the “ban on reimportation” that you mention disapprovingly.Report

    • Nob Akimoto Nob Akimoto says:

      Food safety is one of those concerns that’s actually considered a legitimate reason for trade barriers and discrimination. This is also one of those things that’s being hammered out in the negotiations.

      In terms of agriculture, tariff removal and export subsidies are the two main fields that TPP is aiming to remove. There hasn’t been any real movement on issues of what constitutes a legitimate import ban and it’s doubtful that they’ll come up with anything that doesn’t meet WTO standards.

      As for IP, the agreement’s ban on parallel imports affects countries outside the US from how they do trade with other states. Essentially if TPP has the TRIPS-Plus parallel import ban, then New Zealanders can’t buy DVDs from Singapore (legal ones) if the trademark holder in the US doesn’t want them to. Now given that the US trademark holder licensed them for distribution in Singapore, this would constitute a bit of an overreach of authority, would it not?Report

      • Avatar DensityDuck says:

        I wasn’t trying to have a discussion about food safety; I was trying to describe a practice which was legal in one country, but obviously illegal in another, and asking how this difference could be reconciled.  (I guess I didn’t really need to invent an example at all, when I just write it out that way.)


        You say it’s an “overreach of authority” that a US rightsholder can prevent the sale of Singaporean DVDs to a New Zealand customer.

        But isn’t the converse–that something legally produced in Singapore must therefore be legal everywhere–just as much of an overreach?  If the license is “this is legal for sale only in Singapore”, isn’t it an overreach of authority to say “the free trade agreement says I can sell it anywhere regardless of the licensing terms”?Report

        • Nob Akimoto Nob Akimoto says:

          Right, it’s an overreach either way. The question is who do you prefer to protect? Rightsholders or consumers.Report

          • Avatar DensityDuck says:

            The thing is, you’re asking “who do you prefer to protect, property owners or tresspassers?”

            Or maybe “who do you prefer to protect, people who negotiate mutually-beneficial contracts with the expectation that those contracts will not be exceeded, or people who violate contracts whenever they feel like it?”Report

            • Nob Akimoto Nob Akimoto says:

              Price differentiation only works when you have relatively closed markets and barriers to trade. When that goes away, you start losing the ability to enforce those differentiations unless you look for new legal tools to enforce them.Report

              • Avatar DensityDuck says:

                Isn’t the denial of price differentiation an example of a state declaring that it has power over individual liberty?  In this case, the ability of an individual rightsholder to negotiate a distribution contract with terms they consider favorable.

                See, the problem is that you’re making arguments to fit the attitude you’ve got, but then you aren’t considering what else those arguments say.  “Overreach of authority” works both ways.  And if you’re making a “collective good” argument, then that doesn’t have anything to do with rights at all–just the opposite, in fact.Report

              • Nob Akimoto Nob Akimoto says:

                I don’t think I’m actually going into a collective goods argument.

                I do think that one thing rights holders need to be aware of, is that attempts to regulate distribution rights is increasingly becoming irrelevant in a world where so much distribution is digital.

                My main problem with IP provisions like TRIPS-Plus is that rather than acknowledging the fact that global trade and digital communications make the price-discrimination regimes based on geography and supply-chains less controllable, the rights holders are trying to harmonize the digital domain with legacy distribution channels.

                Now when it comes to transnational trade this is a stickier problem. Parallel importation is often much less of a problem when we’re dealing with countries of a similar level of development. There’s simply less arbitrage between prices to allow meaningful differentiation.

                The larger problem is when you start involving states of multiple levels of income. Given that rights holders prefer getting something rather than nothing, they will tailor product prices to certain markets to be low enough to make piracy a non-issue. Unfortunately the advent of highspeed internet and large storage media formats makes it much easier to carry a boxful of movies sold in Vietnam for 25 cents a pop and resell them elsewhere for $2.50.

                My argument is essentially that we need a harmonized IP framework that works in a globalized environment. Now that means going against parochial state interests and will likely require adaptation for a lot of industries. On the other hand, I think the ultimate benefits of having fewer trade barriers is worth the price.

                You can disagree with this analysis and that’s perfectly valid.Report

              • Avatar DensityDuck says:

                I agree that price differentiation is not something that’s based on market efficiency.

                I don’t see how you eliminate it without also attacking either A: the right of private entities to negotiate binding contracts or B: the right of private entities to own property.

                (And, as I pointed out, not all price differentiation is the result of Evil Capitalist Bastards.  Pfizer would sell their drugs for the same price everywhere if they were legally permitted to do so.)Report

  4. Avatar DensityDuck says:

    Another topic, another post.

    You say “the backward, draconian US copyright regime”, but to what extent is this simply the result of US compliance with the Berne Convention?  US copyright law is not something created in a vacuum, and has not been since the early 1970s.Report

    • Nob Akimoto Nob Akimoto says:

      I’d say the Berne Convention Implementation Act didn’t really do as much to change the US copyright regime as some people would like to claim. Certainly the “modern” US IP regime has seen more in the way of harsher measures against digital IP. (DMCA is a good example of this)

      The US got a pretty good deal in exchange for its Berne compliance, by being able to get TRIPS through the Uruguay Round. That it’s now trying to build on this TRIPS regime with FTAs that enshrine harsher copyright protections is a no brainer.Report

  5. Avatar Plinko says:

    Thanks, Nob, very informative.


  6. Avatar Maxwell Murphy says:

    Very interesting article! How far does the act go on internet ‘censorship’? As well as this how far through is this agreement at present?Report

  7. Avatar BlaiseP says:

    Haven’t posted over here until now:  figured I should do some research before posting.   Thoughtful and diligent work, as usual.

    Do you have any sense of how painful a fishbone the IP requirements will be in the throats of the Knockoff Artistes?   I mean, if someone goes into any marketplace in Asia, you’ll see knockoffs in great abundance.   Here in the States, there’s some, but nowhere near as much.

    While I was digging around, trying to come up with more than a compliment, I uncovered this paper against TRIPS-plus.   I’ll grant you, it’s a bit dated (2008) and some of the drugs manufacturers have responded to the AIDS epidemic in a decent and humane fashion, allowing their drug formulae to be sent overseas.    The troubling wrinkle, for me anyway, is knowing the same markets with the knockoff Nike sneakers are also selling fake drugs.   Not merely generic equivalents, outright fake drugs, worthless or potentially harmless drugs sold as AIDS drugs.

    TRIPS-plus is a troublesome mess, I’ll grant you.  But this is more than just a couple of recording companies trying to grift us for yet another copy of the White Album in the latest format.   This is enforcing some sanity on what for all practical purposes is a caveat-emptor market in worthless drugs.Report

    • Nob Akimoto Nob Akimoto says:

      I think that’s the troublesome part of dealing with “Intellectual Property Rights” in general. There’s so much conflation between fields in one single term that it makes it very difficult to unpack it without creating new problems in turn.

      I’ve actually read the Collins-Chase, and the take-away I’ve always had about the TRIPS-Plus regime was that it was primarily intended as a protection regime for pharmaceutical products. We also see this sort of research being done about the TRIPS framework itself in a bunch of public health journals.

      I’ve seen proposed solutions for the IPR issue that suggest parallel importation is okay based on the level of development of each country (how a treaty would codify this of course is also a problem), and I’m sympathetic to arguments that TRIPS-Plus does help crack down on knockoff drugs.

      I think in the end the reality is that both pharma and big media need to come to grips with the global supply chain and the global market and help create regimes that work better for themselves and for people in general. I don’t have a solution here, but it’s something I’ve mulled over now and then at night with a cigar watching the sky. I may have a post about this at some point, it’s something I’d like to tackle.Report

      • Avatar DensityDuck says:

        Is it valid to describe restrictions on pharmaceutical sales as “protectionism” when the offshore-source prices are the result of regulation rather than negotiation?Report