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IP Rights chapter of TPP far from final, says ministry

Malay Mail, Malaysia

IP Rights chapter of TPP far from final, says ministry

By Gabey Goh

2 August 2013

The Intellectual Property (IP) Rights chapter of the Trans-Pacific Partnership (TPP) agreement is far from being finalised.

“It is one of the largest and more complex chapters and we have a lot of catching up to do to reach a state of consensus in the negotiations, compared with other sections in the agreement,” said Burhan Irwan Cheong, lead IP negotiator for the Malaysian TPP negotiating team.

He was speaking to attendees during the IP breakout session at an open day hosted by the Ministry of International Trade and Industry (MITI) yesterday, which saw approximately 1,000 people present to air their concerns and views over the free trade agreement.

According to an update from deputy chief negotiator Isham Ishak, of the 29 chapters under negotiation, 14 have been "substantively concluded" and their technical aspects agreed upon.

The “sensitive” issues as well as the remaining 15 or so chapters have yet to see substantive agreement and conclusion, with the IP Rights chapter being one of them.

However, Malaysia has already made moves to align itself with some of the provisions outlined in leaked documents posted online. For example, the Copyright (Amendment) Act 2012 which came into force on March 1, 2012, introduced several key changes to the existing Malaysian Copyright Act 1987.

In an information kit handed out to attendees, MITI outlined the TPP’s broad framework and key features being negotiated. They include:

Intellectual Property Rights

To reinforce and develop existing the World Trade Organisation (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) rights and obligations to ensure an effective and balanced approach to IP rights among TPP countries.


To promote competitive market access for telecommunications providers in TPP markets. Commitments include provisions enhancing the transparency of the regulatory process and ensuring rights of appeal of decisions. Additional proposals have been put forward on choice of technology and addressing the high cost of international mobile roaming.


To enhance the viability of the digital economy by ensuring that impediments to both consumer and businesses embracing this medium of trade. Proposals include customs duties in the digital environment, authentication of electronic transactions and consumer protection. Additional proposals on information flows and treatment of digital products are under discussion.

Legally liable and vulnerable

During a panel discussion, which formed part of the open day’s agenda, South Centre’s executive director Martin Khor, who was a panellist, noted that at the heart of such FTAs (free trade agreements), and the controversies that typically surround it, is making globalisation work.

“Firstly it’s about how we managed relations with a global economy; and secondly, how individual countries retain the ability to make domestic policy for their own good,” he said.

The South Centre is an intergovernmental organisation of developing countries based in Geneva, Switzerland.

Addressing the palpable frustration over the lack of access to the text of the agreement as it is still under negotiation, Khor pointed to other FTAs already in effect. According to him, almost all FTA negotiations with the United States as a member are almost the same, with perhaps about 20 per cent in deviations.

To get a good idea of what to expect, Khor said that those interested can access the full text of the FTAs the United States has already signed with Singapore and South Korea online.

“The TPP is more than just a trade agreement, there are many other issues that are a cause for concern,” he added.

Of all the contested aspects of the TPP, it was the Investor-State Dispute Settlement (ISDS) which received the most airtime during the discussion. The ISDS grants investors the right to initiate dispute settlement proceedings against foreign governments in their own right under international law.

Should the provisions in the TPP come to pass, Khor noted that it would have an serious impact on the policy-making environment for the country.

“The TPP has provisions to protect foreign investor rights, treating foreigners equally or in fact better than locals,” he said.

He pointed to the case of the Indonesian government which signed the treaty with UK-based mining company Churchill Mining, and was sued to claim compensation of US$2 billion (RM6.4 billion) for future losses on the company’s side after the government passed laws restricting mineral exports.

He added that the Malaysian government has already put forth its red lines or non-negotiable items, which include the matter of safeguarding Bumiputera and local SME (small and medium enterprise) interests.

“If these red lines that MITI has put forth are not accepted, then they will be faced with a dilemma and will have to make a choice: To stay on with the negotiations, or persuade other members to side with them, or decide whether as a nation we can tolerate not signing the agreement. These are hard choices,” he added.

‘Trust us’

In his speech welcoming attendees, Minister of International Trade and Industry Datuk Seri Mustapa Mohamed stressed that the open day hosted by his ministry was “not a public relations exercise.”

“The objective of today is for you all to say your piece and for me to listen. This has been the hottest topic in town for the past couple of months, and it is obvious to us that the TPP has generated a lot of interest,” he said.

Mustapa also reiterated that the TPP remains a work in progress, with nothing concluded.

“I know there has been a lack of trust in MITI and hope to breach the trust deficit. We aim to narrow the information gap, and hopefully we will be able to listen to some very frank views this morning,” he added.

During his presentation, deputy chief negotiator Isham said that the motivation for Malaysia joining the TPP in 2010 was to be part of the founding members of the agreement in order to play a more substantive role in its formulation and ensure that the nation’s concerns were adequately addressed.

“Had we joined at the end, we would have to accept whatever terms had already been finalised,” he added.

He also pointed out that to date, the country has already signed and implemented six bilateral and six regional FTAs.

“We are experienced enough with such agreements and have the competency to handle the negotiations for the TPP. We’ve been in this business for some time,” he added.

Isham noted that Malaysia’s trade with countries under FTAs have improved, pointing to the pact with Japan which helped improve trade from RM112.8 billion in 2005 to RM145.3 billion in 2012, with a major portion being palm oil exports.

"The successful conclusion of the TPP will form a huge duty free market of 800 million people with a combined GDP (gross domestic product) of US$27.5 trillion. This far surpasses Malaysia’s limited domestic market of 29.5 million people and a GDP of US$300 billion," he added.

The wish for public feedback was more than forthcoming, although most centred on the on-going lack of information shared by MITI.

According to a report by The Malaysian Insider, a coalition of groups and activists under Anti-TPP Action Group questioned why only a senior MITI official updated stakeholders on the state of negotiations up to the 18th round of talks in Kota Kinabalu.

"But where is MITI in this forum? What is the point of this forum — given the many questions that the public and civil society have about the TPP negotiations — if MITI is not on the panel of speakers?" the group said in a statement.

Speaking to Digital News Asia (DNA) on the sidelines of the TPP open day, Dr Jeremy Malcolm, a senior policy officer for Consumers International, noted that some of the participants were obviously expecting more than a public relations exercise today.

“But it was never likely that the Malaysian negotiators would reveal anything that wasn’t already public knowledge. To MITI’s credit, the panellists spoke freely, and endured the audience’s question’s stoically — but without offering many answers.

“It was telling that one of the audience members said: “I just hope that we don’t read in the newspapers tomorrow that we all accept this agreement. It’s clear that the majority in the audience didn’t.”

Malcolm has been following the TPP’s progression closely and when asked if Malaysia was the first in hosting a public forum to address concerns, he said that a number of the other countries have held similar national consultations.

“But all of the countries are under the same duties of confidentiality. A smaller number of the countries — the United States and Canada, notably — do allow certain industry and NGO (non-governmental organisation) representatives detailed information about the text if they are willing to sign a non-disclosure agreement (NDA).

“But the terms of that NDA prohibit them from publicly acting on what they have learned, so most have opted out of this Faustian bargain,” he said.

The next round of TPP negotiations is scheduled to be hosted in Brunei from August 22-30.