Comment by teachingaway | Hacker News Reader

Comment by teachingaway | Hacker News Reader

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As an IP lawyer, I'd like to say that reading this draft document is super boring. The parts that I skimmed (less than 10%) was all just harmless procedural rules. Can someone point out or quote the controversial parts? Here's the skeleton ToC and a few highlights:

A: General Provisions [seems boring]

B: Cooperation [seems boring]

C: Trademarks

D: Geographical Indications

E: Patents [including genetic stuff - probably controversial]

- Article QQ.E.2387: {Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources}

F: Industrial Designs

G: Copyright

- [basically Fair Use:] - Article QQ.G.Y: {Limitations and Exceptions} - "Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions... including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism, comment, news reporting, teaching, scholarship, research, and other similar purposes..."

- [DRM stuff:] - Article QQ.G.10: {Technological Protection Measures}

H: Enforcement

This:

1. Subject to the provisions of paragraph 2 and 3, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application.

which appears to mean software patents in the EU; and mathematical patents in the US (because MX specifically try to exclude that below)

Also this:

[CL/NZ/PE/MY/BN/VN/CA/MX oppose: Except as otherwise provided in this Chapter, including Article QQ.G.8 (Berne 18/TRIPS 14.6),] a Party shall not be required to restore protection to subject matter than on the date of entry into force of this Agreement has fallen into the public domain in its territory.

So the Govt's of CL/NZ/PE/MY/BN/VN/CA/MX appear to want to reprotect parts of the public domain?

The most controversial part of this for me is this:

    [NZ/CL/PE/VN/BN/MY/SG/CA4/MX5 propose; US/JP oppose: The objectives of this Chapter are:

Who are these parties and why are they negotiating this in secret, away from the public eye. If it is just mundane boilerplate (not finished reading yet) then I have to say that the most surprising thing of all is that we are being governed by copy/paste. I don't think that is the case here.

New Zealand / Chile / Peru / Vietnam / Brunei / Malaysia / Singapore / Canada / Mexico propose; United States / Japan oppose.

International agreements are always negotiated privately before being submitted to legislatures for public comment and ratification.

Domestic laws are done the same way. The terms of any major bill before the U.S. Congress, for instance, are first negotiated in private among a smaller group of legislators before being introduced for public debate and amendment.

Business deals are usually done the same way. Two companies considering a merger negotiate the terms in private first, then present the deal to their boards/shareholders for approval.

While that is true, it does not mean that this is right.

Do note that domestic laws are actually brought up for discussion, and (at least in democratic countries), often have non trivial changes applied, some items dropped altogether, etc.

Similarly, a merger is brought to a vote/discussion, and the terms often change during this discussion - e.g., shareholders want more cash / more equity, and stuff like that.

Agreements like the TPP are take-it-or-leave-it, meaning there's basically no discussion except by the unelected negotiators - which, especially in WIPO related issues, seem to have their past and future employers' interest in mind more than they represent their public.

>> International agreements are always negotiated privately before being submitted to legislatures for public comment and ratification.

The whole problem with that is the folks doing the negotiating do not represent the public and they are in effect agreeing to have laws passed. One group is negotiating to have a second group pass laws, who are supposed to represent a third group - the people. I suppose they think bringing it to congress for a vote makes it all OK, but where was the real debate?

The negotiators are official representatives of these national governments. So, they represent their citizens to the extent that any government staff person does so in each respective country. For the U.S., negotiations are led by the U.S. Trade Representative, who is appointed by the President and confirmed by the Senate.

Domestic laws are also written for legislators by corporations through organizations such as ALEC: https://en.wikipedia.org/wiki/American_Legislative_Exchange_...

The best interests of the people being impacted are not being protected. Citizens are being excluded from a process that is supposed to be democratic. It is corrupt.

Personally? You just listed one:

Section E: Patents (including genetic stuff)

I don't think genetics should be patentable. The thinking behind patenting genes is repulsive to me.

Patenting any genes, or just natural ones? What about novel applications of existing genes?

I probably don't have a big problem with someone creating an artificial gene and then patenting its use, and I'm not sure I have a problem with someone patenting a random jellyfish gene for fluorescence for use in making glow-in-the-dark corn, or for patenting the use of an apparently useless gene for some discovered utility in another species.

I would have a problem with someone patenting a gene with an existing "use" for that specific use. That is, I don't think someone should be able to patent the use of a "blue eyes gene" for the purpose of giving someone blue eyes. There's no invention there.

On the other hand, playing devil's advocate, why not incentivise the discovery of genes that confer some benefit? The long-run benefit of those discoveries would no doubt outweigh any short-term monopoly costs, and research (both statistically and into applications) would definitely result.

Any, to be honest. I understand that this might greatly reduce the interest in gene discovery but I think putting a legal constraint on something that is then released into the wild and self-propagated can only lead to problems.

It's a somewhat unreasonable stance I admit but I feel the problems caused would outweigh the supposed benefits.

I'm also starting to be against patents in general so it may be a more general shift in my attitude.

You can't patent natural genes for their natural uses. The controversial thing is patenting the process of using particular gene sequences in order to diagnose particular conditions.

Are you sure about that? I might be wrong, but IIRC, Monsanto's RoundUp-Ready Corn was said to be only transgenetically modified (i.e. the Genetically Modified part of the corn came from another organism's genes), but was patent-protected.

Did they patent the gene or the new artificial combination of genes. Well Monsanto probably did both, but only the later would hold up in court now.

> - [DRM stuff:] - Article QQ.G.10: {Technological Protection Measures}

This should be extremely controversial. The anti-circumvention language in existing treaties have been a monumental failure, being used more to cement monopolies than prevent copyright infringement (for which it has been wholly ineffective). New treaties should have the goal of removing the existing requirements for such legislation rather than applying them to more countries.

You also missed the extra intellectual property rights for pharmaceuticals in Addendum II. Those are controversial, and in the previous draft, were in the main document. Now they've been moved down to an addendum and are different for different countries.

There's also * [US/JP propose; CL/MY/PE/SG/VN/BN/AU/NZ/CA/MX oppose: 2bis. For greater certainty, a Party may not deny a patent solely on the basis that the product did not result in an enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application.]*

That's a gimme for Big Pharma's "me too" drugs, where it's no better, but slightly different. Clarinex is an example.

What's controversial about the document is that our leaders would like to keep it secret. For, you know, your own protection.

It's secret because it would be monumentally ineffective to negotiate a trade agreement in the open. Ratification or rejection, once negotiation completes, should be done in the open, but not the negotiation itself.

The reason is simple: the parties in a trade negotiation generally cannot get everything they want. They have to concede on some points in order to get what they want on other points. Over the course of negotiation, when a party is offering to conceded and what they are standing firm on changes.

You might have a party asking for, say, terms favorable to their automobile manufacturers but to get those they have to allow terms that are unfavorable to their clothing manufactures. As negotiations progress, they may be able to give up the automobile terms to get back the clothing terms and pick up things in agriculture and entertainment.

If all this were open, every one of those changes would be met with intense lobbying and political pressure domestically. The President, every Senator and Representative, every Governor, and probably the mayors of every major city, would be putting pressure on the negotiators to try to favor their biggest backers. The negotiators would be constantly being called to testify at hearings over each iteration. It would be a mess.

In a broad sense, I think these agreements and increased integration are a threat to classical liberalism-

http://en.wikipedia.org/wiki/Economic_integration#Stages

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