It would not be difficult to convince the various constituencies arrayed against the expansion of intellectual property rights to support the removal of the IP chapter from the projected U.S.-European Union free trade agreement (known as TTIP, the Transatlantic Trade and Investment Partnership). Open source advocates, First Amendment partisans, pirates and free riders, as well as ordinary American consumers, see little to be gained from yet another international commitment to strong IP. Eliminating the IP chapter from TTIP should appeal to the U.S. IP industries as well. There is little to gain, and perhaps much to lose, in including an IP component to TTIP. IP zealots (and I'm talking to you, Hollywood) might be better served to await a better day.
As I argued in part 1 of this essay, there is little ground the European counterparty is politically willing or able to give in any TTIP IP negotiations. The TTIP IP chapter is a lightning rod for anti-globalists - and the European Parliament will guard the populist victory it won in quashing ACTA. And neither the United States nor the European Union seem ready to undertake the extremely difficult task of harmonizing substantive IP law across the Atlantic. The Americans and the Europeans seem to share a resignation to let "vivre la différence” in substantive IP rules; each of course would be satisfied by a wholesale capitulation to its respective IP model, yet each recognizes the impossibility of such an outcome. Impending EU substantive IP harmonization - in patent and copyright - pursued through the EU legislative process might be a more favorable opportunity to highlight (with a light touch, of course) the gains to be achieved through transatlantic IP convergence (admittedly moving EU IP law closer to U.S. models).
Leaked reports suggest some Europeans see possibilities for U.S. movement in TTIP with regard to geographical indications (GIs). Perhaps. But the United States clearly recognizes the intense desire of certain European interests for a stronger GI regime (especially with regard to wines). The United States will likely make painful demands of the European Union before making concessions on GIs.
In the end, there is not much new nor important that can form the IP chapter of TTIP beyond simply restating the ongoing general commitment of the United States and the European Union to a high standard of IP protection. And there is a downside to a modest agreement (again from the perspective of those U.S. industries seeking a global advancement in the protection and enforcement of IP rights).
At a political level, the withdrawal of the ACTA wish list of IP enforcement reforms from TTIP (necessitated by the Commission's desire to distance itself from the ACTA toxic spill) could undercut U.S. efforts within the Trans-Pacific Partnership (TPP) negotiations, as well as other prospective instruments where the United States seeks enhanced IP enforcement obligations. The Europeans seem now to be implacably opposed to increasing criminal liability for IP offenses, yet this remains a goal of U.S. negotiators within TPP. How can the United States make IP demands of TPP partners such as Australia or Vietnam that the United States did not pursue from the Europeans?
Trans-Pacific counterparties can make an equality of treatment claim in order to resist any IP undertaking that would go beyond what the United States is able to secure from the Europeans in TTIP. Perhaps the better way to close off those equality of treatment objections within the TPP forum would be to by removing IP coverage altogether from TTIP. It would be more credible for the United States to render TTIP wholly irrelevant as an IP template for TPP were TTIP not to address IP matters.
It may be that the long-standing linkage (dating from NAFTA and the Uruguay Round) between IP protection and broader trade issues has played out. If there are important trade gains to be realized from TTIP (and I am doubtful of this), their chances should not be reduced by blindly insisting that IP be covered as well. Give the ACTA debacle (and the on-going surveillance scandals), IP coverage in TTIP can only attract more intense opposition.
Advancing the U.S. IP agenda (assuming this is a desired objective) is better conducted in a more thoughtful, more pragmatic manner. If TTIP is not a promising site for IP reform (and it is not), then it would be wiser to do nothing and await a more appropriate occasion for promoting IP rights.
Note to the careful reader: Yes, I wrote Transatlantic. And Trans-Pacific. These are not consistent. I follow the names of the respective treaties. The inconsistency is mysterious to me as well.