Sunday, May 17, 2015

Sipping a Pisco Sour Listening to Phonograms


I find it fascinating that in the hundreds of pages of provisions set forth in the Trans-Pacific Partnership Agreement (TPP), the one token request from Chile - to secure the name "Pisco" for their signature drink the way France got Champagne - was opposed by Australia, the United States, Peru, New Zealand, Vietnam, Singapore, Malaysia, Brunei, Mexico, Canada and Japan. 

What a terrible day to be the trade negotiator from Chile.

"Listen Eduardo, we know that we're going to have pharmaceutical, agrochemical, and digital rights from the U.S. shoved down our throats so at least get us our signature drink protected!", Chile's President said as the trade delegation was leaving Santiago.

"Si, El Presidente," Eduardo nodded beaming from ear-to-ear with his chance to do his country proud.

… followed by….

"Um, El Presidente, the U.S. got Mickey Mouse protected for 120 years and got to extend the copyright for phonograms for 95 years - longer than their own law allows…"

"Yes, yes, Eduardo," the President waited, "and what of our Pisco sours?"

"Well," Eduardo cleared his throat and kicked his well worn shoes into the pavement, "it doesn't look good."

If you listened to President Obama and Congressional leaders this week, you heard that the United States was urgently seeking to conclude a vital piece of trade legislation paving the way for the TPP.  Senate Bill 995 also known as the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (CTPA) allegedly will boost the U.S. export market for its goods and services.  Supported by the American Association of Port Authorities, the National Council of Textile Organizations, the U.S. Business Coalition for TPP, Honeywell, and others, Congress feigned opposition long enough to attempt to placate labor momentarily only then to give the President most of what he wanted.  To date, we don't have a lot of visibility into what the TPP includes but, from the CTPA, we can get a great clue as to the identities who have shaped it. 

Leading off the list of campaign contributors would be U.S. pharmaceutical companies.  In the copy of the TPP published by Wikileaks last year, the leading provisions for trade enforcement begin with specified protections for U.S. pharmaceuticals (§QQ.E.16) followed by agrochemicals (§QQ.E.XXX) rounded out by recorded media and software (§QQ.G.1).  The CTPA adds color to this list by highlighting interests of U.S. industrial agriculture and about a dozen specified industries.  Under the TPP, many protections afforded to U.S. exporters exceed the current U.S. legal protections for commerce rights (patents, copyrights, trademarks and the like) despite the fact that the CTPA clearly states that no trade agreement shall have provisions that supersede U.S. law.  Apparently, what this means is that as long as it is as favorable or more so to U.S. commercial interests, we're willing to impose our most greedy position on other nations but if the inverse is the case, it's right out.

In the final analysis it's clear that both the TPP and the Orrin Hatch / Paul Ryan sponsored CTPA are evidence of the Executive and Legislative branches of government selling the law for patronage.  Wrapped in whimsical nostalgia about creating U.S. employment, protecting the rights of workers, and caring for the environment, a detailed reading of these documents (including that unfortunate TPP §QQ.D.12 which screws Chile and its one drink of note), shows that these efforts are purely protectionist.  Changing the terms of copyrights, forcing the recognition of U.S. pharmaceutical patent rights (including their term extensions based on U.S. regulatory delays), and criminalizing IP theft while allowing "traditional knowledge" abuses to be a best efforts compliance is an affront to the principles of genuine competition. 

The implications of TPP abuses are not ephemeral.  This past week, I was the target of a very angry investor who alleged that I had "ruined his retirement" by threatening the value of a stock in which he held a sizable position.  Early in the week, M∙CAM published a detailed report showing that the patents supporting the drug Revlimid® made by Celgene were clearly subject to legitimate invalidity findings.  Making matters worse, just one week earlier, the European Patent Office had arrived at the same conclusion.  The arrogance with which the company dismissed this critical ruling and the U.S. market's contempt for the European decision - with numerous analysts stating that the European decision didn't matter because it had no bearing on the U.S. patent - was disgusting.  Never mind the fact that a good friend of mine in Australia, suffering from a form of cancer for which Revlimid® is indicated but for whom the drug is excluded by virtue of the patent-inflated cost, faces a worse prognosis because of a patent system abuse.  By showing that Celgene had at best exerted influence and at worst, outright mislead authorities, apparently I was the reason why an investor was "ruined" - the same investor who likely laments the cost of prescription drugs in the U.S. and has no knowledge of the patent manipulation upon which his investment rides.  In a TPP world, my Australian friend will be even more likely to suffer and die so that my U.S. investor acquaintance can get enriched.  Stock chatrooms were alight with suspicions that M∙CAM had been hired by a notable equity trader to do a "hatchet job" paying NO attention to the facts of unfair competition and systemic abuse.

I'm not na├»ve.  I know that governments and corporations collude now just like they have from the beginning of delegated sovereignty.  Furthermore, it has been and remains the case that the economically and militarily powerful typically get to make the rules that they get to impose on others.  While I think that this is reprehensible, I don't see many people seriously seeking to transform this reality.  But what I find most tragic is the silent assent We The People give to those who, after taking every advantage, still have to cheat to win.  While Congress talks about staying competitive, our trade negotiators are still using the term "phonograms" which signifies the state of awareness of the thinking (or lack thereof) in those who craft and manipulate the rules.

Worst of all, in the Commerce and Congressional activities around the TPP and the CTPA, we're neglecting a profound problem.  The system of industrial drug addiction, genetically modified caloric production (formerly known as agriculture), digital media hypnosis, and monotonic industrial design has been leading to decreased economic status in the U.S. middle class (to say nothing of the unemployed and uninsured lower class).  The model of planned obsolescence - made famous by industrial designer Brooks Stephens - has itself become obsolete.  And now, rather than calling for a renaissance of quality and aesthetic improvement, we're merely placing the rest of the world under the screws of a system that failed us.  It may be the case that no one in the U.S. is capable of waking from the hypnosis to architect a More Perfect Union but certainly, someone in  Australia, Chile, Peru, New Zealand, Vietnam, Singapore, Malaysia, Brunei, Mexico, Canada or Japan could wake up before this protectionist train-wreck is allowed to take effect.  Or maybe, just maybe, too many have simply given up.

Cue the phonograph, pour yourself a Pisco sour, and, in the waning moments that we have to actually do something about these reckless abuses of ourselves and our Earth, consider whether you wish to stand for a better tomorrow.

x

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Thank you for your comment. I look forward to considering this in the expanding dialogue. Dave