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FAQ : Trans Pacific Partnership

Posted on May 24, 2010

New Zealand is one of the four original members of the Trans-Pacific Partnership free trade agreement. Other countries (Australia, the USA, Peru and Vietnam) are now interested in joining the agreement. It is referred to as both TPP and TPPA.

This FAQ answers some of the frequently asked questions about the TPP. It was last updated on 16th May 2011.

Contents:


Thanks to the NZ Ministry of Foreign Affairs and Trade for their webpage about the Trans-Pacific Partnership.

The Current TPP Agreement - P4

 

What is the Trans Pacific Partnership/TPP?

The Trans-Pacific Strategic Economic Partnership Agreement (TP-SEP or TPP) is a free trade agreement covering both goods and services. It also includes an Environment Cooperation Agreement and a Labour Cooperation Memorandum of Understanding. It was signed in 2005 and entered into force on 1 May 2006.

The TPP is designed to be a model trade agreement with high standards that other countries might wish to join.

Read the text of the agreement.

What is the difference between TPP, TPPA and P4?

Both TPP and TPPA refer to the Trans Pacific Partnership Agreement.

P4 is used to refer to the original treaty signed by New Zealand, Singapore, Brunei Darussalam and Chile.

This FAQ uses P4 to refer to the original treaty and TPP to refer to the expanded treaty.

Is there a connection between P4/TPP and the ACTA (the Anti-Counterfeiting Trade Agreement)?

The purpose of ACTA is to increase international cooperation in the enforcement of current laws around intellectual property rights (there were attempts to use it to mandate new laws but most of these were defeated).

TPP is a more general agreement covering free trade, but the US (and possibly other countries) also wish to use it to force the participating countries to adopt new and more restrictive intellectual property laws around copyright, patents an trademarks.

Read more about ACTA at Wikipedia or read Tech Liberty's view.

Which countries were originally part of the TPP?

The original four members of the treaty (known as P4) are New Zealand, Singapore, Brunei Darussalam, Chile.

These countries all have relatively small and open economies.

How much control over their own affairs do countries give up by joining the P4?

The agreement includes a number of provisions that ensure that each country does not feel overly constrained by the agreement in areas unrelated to trade. These include recognitions of differing standards of labour and environmental protection, as well as exceptions to protect the maintenance of public health, items of national importance, cultural works and public morals. Taxation and security are also explicitly excluded.

What does the P4 say about copyright, patents and other forms of intellectual property?

The P4 says that the countries will honour their obligations to each other under the WTO TRIPS Agreement.

The agreement takes a fairly balanced view of intellectual property rights, recognising the need to "achieve a balance between the rights of rights holders and the legitimate interests of users and the community".

It explicitly says that the countries may adopt appropriate measure to prevent the abuse of intellectual property by rights holders in an effort to "unreasonably restrain trade or adversely affect the transfer of technology".

Does the P4 say anything about Technological Protection Measures?

The P4 says that the members may establish provisions that allow consumers to exercise their rights under local law, regardless of shrink-wrap style licenses or technological protections.

Does the P4 include other forms of intellectual property?

Countries may take measures to protect traditional knowledge.

Their are also provisions relating to the honouring of trademarks and geographical indications (including country names).

Expanding the Trans Pacific Partnership

Which countries are interested in joining?

The TPP was intended to be a model and high standard agreement that other countries might wish to join.

The USA, Peru, Vietnam, and Australia have entered into talks with the original members. Malaysia joined the talks in October 2010.

What are "high standards" when it comes to a trade agreement?

According to the people pushing the TPP, a trade agreement with high standards:

  • covers trade in both goods and services
  • goes beyond removing tariffs and also covers other barriers to trade such as standards, regulatory compliance, etc
  • also includes investment and measures to help businesses operate across countries

What is the process for other countries to join?

"This Agreement is open to accession on terms to be agreed among the parties, by any APEC Economy or other State."

Are there any plans to change the text of the TPP?

The treaty is being renegotiated as part of the expansion in membership.

Who gets to decide what's in the new version?

Both the current members and the prospective members are negotiating the new version and can propose changes.

How open is the process and the text?

The changes to the treaty are being negotiated in secret.

How long will this process take?

The first meeting took place in Melbourne in March 2010, since then there have been the following formal sessions:

  • San Francisco, USA in June 2010
  • Auckland, New Zealand in December 2010
  • Santiago, Chile in February 2011
  • Singapore in April 2011
  • Ho Chi Minh City, Vietnam in June 2011

The process is expected to take 1-2 years, with officials describing the goal of finishing negotiations by November 2011 as "ambitious".

Sector by Sector in the new TPP

 


This section is based on the best information available at the time of writing, including leaked documents, discussions with officials and observations about other trade agreements recently negotiated by the parties involved.

Intellectual Property (copyright, trademarks, patents)

Will the changes include the provisions around intellectual property?

The New Zealand government has written that it expects the USA to "pursue a negotiating agenda that extends beyond goods and services into areas such as intellectual property, foreign investment and pharmaceutical services".

A draft IP chapter (as of Feb 2011) prepared by the US has been leaked. Apparently this has been expanded on since.

What are some of the IP provisions requested by the US?

  • The banning of parallel imports (purchasing legal goods overseas and selling them here against the wishes of the local rights holders).
  • Extension of the standard copyright term.
  • Making circumvention of a TPM illegal, even if you're doing it for a non-infringing purpose. i.e. no region free DVD players.
  • The return of internet disconnections on being accused of infringing copyright.
  • Internet service providers will be forced to reveal their user's name if they're accused of copyright infringement.
  • New controls on patentability of genetically modified plants.

What is the New Zealand position on intellectual property?

New Zealand's proposed chapter on intellectual property has been leaked.

This calls for the countries to honour their obligations under the WTO's TRIPS treaty, says that the treaty should be implemented in such a way that it doesn't hinder commerce and preserves fundamental rights such as freedom of speech, encourages cooperation between the parties in enforcing IP law and optionally adopting other IP-related international agreements, recommends some standards around trademarks, and says that countries shall provide for some form of enforcement against copyright infringement.

It also calls for the recognition and protection of traditional knowledge and traditional cultural expressions. The countries are to endeavour to recognise indigenous people or local communities as the custodians of this knowledge and protect against the offensive use of cultural expressions.

Investors

What is "investor protection" in a trade agreement?

From the TPP Watch website:

That works at several levels.

  • Laws that allow foreign investment would be locked so they could only be weakened, unless the government reserves the right to strengthen them before it signs the agreement. Previous NZ governments have already done that for everything but sensitive land, privatisation of existing SOEs, and a small number of assets.
  • It would guarantee foreign firms are consulted over proposed new laws and the government would have to show how it had responded to their views. NZers have no such guarantee of input into our own laws!
  • If the government does go ahead with a new policy or law that the investors say affects the value of their investment they could sue the government for millions of dollars for breaching their rights under the TPPA (trumping our domestic laws).

New Zealand Negotiating Process

 

Who decides what the New Zealand negotiating position is?

This is decided by Cabinet.

Who is negotiating on behalf of New Zealand?

The Ministry of Economic Development is negotiating on behalf of New Zealand.

What is the New Zealand negotiating position?

We can assume that New Zealand approved of the current P4 agreement.

The position of the NZ government on the redone TPP has not been released, however a New Zealand authored proposal for the intellectual property chapter (PDF) has been leaked.

The MED has also started a column about the TPP negotiations from the perspective of NZ officials.

Are New Zealanders being consulted?

The Ministry of Economic Development has been consulting with interested parties.

Contact Peter Bartlett at the MED to be involved.

What is the process for New Zealand deciding to adopt a new version of the TPP?

  1. The Ministry has a mandate from Cabinet to negotiate the treaty.
  2. Cabinet then decides whether to sign the treaty.
  3. Officials draft a National Interest Analysis and present it to Parliament.
  4. Parliament goes through the select committee and public submissions process. However, Parliament can not modify the treaty or overrule the cabinet's decision to sign it.
  5. A bill is drafted to enact any required changes to NZ law.
  6. The bill goes through the normal parliamentary process.

This can lead to the situation where New Zealand (the Cabinet) has signed the treaty but Parliament refuses to pass the associated law changes.

What happens if the TPP conflicts with the Treaty of Waitangi?

The current P4 agreement includes a clause ensuring that the NZ government is able to take any measures it deems necessary to fulfill its obligations to Maori under the Treaty of Waitangi. It is not known if this will be retained in the revamped TPP treaty.

About Thomas Beagle

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