[-empyre-] hackers, traditional knowledge and the TPP

[Zac Zimmer]

 I think we can make my previous question about hacker communities,
traditional knowledge, and intellectual property more concrete by looking
at the example of the Trans-Pacific Partnership (TPP), a multinational
trade agreement currently under negotiation between 12 different countries,
including Peru, which in total represent 40% of all world trade. Up to this
point, all negotiations have occurred in secret, and the only public
information about the TPP that exists is the leaked marked-up draft
chapter<https://wikileaks.org/tpp/index.html>,
courtesy of wikileaks.

I want to highlight three parts of the IP section of the TPP (sorry: the
aether of the IP universe is the acronym); by thinking these three parts
together, we can get a better sense of the contours of resistance to
neoliberal IP globalization. Again, the goal of the TPP, like other free
trade agreements and the TRIPS framework, is the harmonize and universalize
global IP norms, based on the North American model.

Anti-circumvention
rules<https://www.eff.org/deeplinks/2013/05/hackers-makers-and-tinkerers-heres-how-tpp-would-hurt-you>The
draft TPP seeks to criminalize any attempt to circumvent technological
protection measures, including any type of reverse engineering, for any
person with "reasonable grounds to know" (i.e. regardless of motive); the
punishment could be "the destruction of devices and products found to be
involved in the prohibited activity" (see TPP QQ.G.10 and QQ.H.4.15.d).
This is obviously a frontal assault on hacking and maker culture, and I
think the empyre community can agree that, with respect to technological
enforcement measures and DRM, we should celebrate circumvention, not
criminalize it. Furthermore, reverse engineering, the action the TPP wants
to prohibit, is on the contrary the material manifestation of critical
thought. Here, then, the solution is clear: radical openness at the levels
of hardware, software, and code.

Access to medicine and global public
health<http://www.citizen.org/documents/TPPonepagerfinalnovember2013.pdf>This
element of the TPP has generated significant interest in the global
health community, especially as it relates to the use of generic drugs. In
2011, during the IX Round of the TPP negotiations in Lima, a group of NGOs
and civil society groups wrote an open letter to the Peruvian government
protesting the agreement as guilty of 'policy laundering', expanding
pharmaceutical patent protection beyond that negotiated in Peru's previous
bilateral trade agreement with the US without offering any tangible benefit
to Peru. Once again, the solution appears a straightforward of access and
openness, where a pharmaceutical patent should never present an obstacle to
the promotion of public health. (QQ.E.13 and QQ.E.16)

Protection of traditional knowledge and cultural
patrimony<http://intranet.mcultura.gob.pe/intranet/dpcn/> Regrettably,
the leaked draft TPP only has a "placeholder" text dealing
with traditional knowledge and indigenous cultural patrimony (QQ.E.23).
Furthermore, it is unclear how a country with a "informed previous consent"
law like Peru can continue negotiating the TPP without indigenous
representation present at the meetings (Ley N. 29785 and Ley N. 27811).
That said, we can confidently assert that indigenous groups and their
allies are not advocating for more openness, but rather the opposite: a
global mechanism of previous consent and an ability to withdraw traditional
knowledge from the public domain and the global marketplace.

So again, projects like the TPP (and TRIPS, which proceeds it) attempt to
harmonize and universalize a world intellectual property standard with
universal enforcement mechanisms, while advocates of indigenous knowledge
stress the need for plurality and exception in ways that differ from
hacker/maker communities. To conclude, I'll pose another thought
experiment: what would it look like if our relationship to traditional
knowledge and indigenous communities, as opposed to private property and
neoliberalism, formed the basis for our reflections about the legal
challenges posed by new technological advances? Do concepts such as
cultural patrimony, informed previous consent, and other such ideas
expressed in the UN Declaration of the Rights on Indigenous
Peoples<http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>
offer
any new ways for thinking through the impasse posed by intellectual
property?


Zac Zimmer
Assistant Professor of Spanish
313 Major Williams Hall
Department of Foreign Languages and Literatures
Virginia Tech
Blacksburg VA 24061
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