An alleged official document leaked last week showed that the United States is
taking the lead in escalating intellectual property rights enforcement in
negotiations for a regional trade agreement among countries bordering the
Pacific Ocean. But there may be some concern about IP protection going beyond
existing international trade obligations.
In December, New Zealand had expressed concerns over
IP protection exceeding international trade rules, in reference to previous US
trade agreements, according to sources.
The Trans-Pacific Partnership (TPP), originally called the Trans-Pacific
Strategic Economic Partnership Agreement, was signed in 2005 between four
countries: Brunei Darussalam, Chile, New Zealand, and Singapore, according to
the New Zealand Ministry of Foreign Affairs and Trade.
In December 2009, the US decided to enter negotiations to join the trade
agreement. In March 2010, negotiations began to extend the agreement to new
partners, including Australia, Peru, the United States, and Vietnam. Malaysia
joined the negotiations in October 2010.
The fifth round of TPP negotiations took place in Santiago, Chile, from 14-18
February, and the sixth round is planned for 28 March-1 April in Singapore.
According to a source, the negotiations might start a day early to allow for
discussion on the IP chapter of the agreement.
In a December 2009 letter to Nancy Pelosi, then-speaker of the House of
Representatives, and Robert Byrd, then-Senate president, US Trade
Representative Ron Kirk said the partnership ?would create a potential platform
for economic integration across the Asia-Pacific region, a means to advance US
economic interest with the fastest-growing economies in the world, and a tool
to expand US exports.?
In the letter, Kirk also said ?we have seen a proliferation of trade agreements
in the Asia-Pacific region to which the US is not a party,? leading to a
decline in US share of key Asia-Pacific markets over the last decade.
The USTR has been promoting the TPP and posted a page displaying an interactive
map of the US with benefits from the TPP for each US state.
The document [pdf] leaked to and published by
Knowledge Ecology International, dated 10 February, is the US proposed
intellectual property chapter of the agreement under negotiation.
The general provisions give a list of international treaties and agreements that
the TPP signatories would have to sign “by the date of entry into force of this
agreement”, most of these managed by the World Intellectual Property
Organization. These include (but are not limited to): the Patent Cooperation
Treaty (Brunei is currently not a member); Convention Relating to the
Distribution of Programme-Carrying Signals Transmitted by Satellite (Brunei,
Chile and New Zealand are not current members); the Budapest Treaty on the
International Recognition of the Deposit of Microorganisms for the Purposes of
Patent Procedure (Brunei, Chile, New Zealand, Vietnam not current members);
WIPO Copyright Treaty (Brunei, New Zealand, and Vietnam not current members);
the Convention for the Protection of Producers of Phonograms Against
Unauthorized Duplication of Their Phonograms (Brunei and Singapore not current
members); and the International Convention for the Protection of New Varieties
of Plants (UPOV). (Brunei and Peru not current members).
The US IP rights chapter covers all areas of protection, such as trademarks,
internet domain names, copyrights and related rights, and patents.
While rights holders see a need for greater protection, such as longer
copyright terms, civil society groups have shown concern. The US document asks
for term of protection of a work to” be calculated on the basis of the life of
a natural person, the term shall be not less than the life of the author and 70
years after the author`s death,” and “not less than 95 years from the end of
the calendar year of the first authorized publication of the work, failing such
authorized publication within 25 years from the creation of the work,
performance, or phonogram, not less than 120 years from the end of the calendar
year of the creation of the work.”
In a press release from 15 March, Jane Kelsey, a law professor at the
University of Auckland, said the leaked document “includes material not
contained in the previous leak of the US IP text “ and confirms the extreme
nature of US demands.”
Broad Patentability Criteria
As patents on genes and in particular genetic diagnostics are currently under
challenge in the US (IPW, IP Live, 30 March 2010), the US proposal appears to
call for broad patentability criteria.
For example, said Kelsey, “according to analysts, the US text would stop
countries from adopting practices that India and the Philippines have used to
prevent the “evergreening” of patents, which further restricts the production
of cheaper generic medicines.”
On patents, the document states that each party shall make patents available
for any invention, whether a product or process, in all fields of technology,
provided that the invention in new, involves an inventive step, and is capable
of industrial application. In addition, the parties confirm that patents shall
be available for any new forms, uses, or methods of using a known product, and
a new form, uses or methods of using a known product, and a new form, use or
method, of using a known product may satisfy the criteria for patentability,
even if such invention does not result in the enhancement of the known efficacy
of that product.
The provision also states that each party “shall make patents available for
inventions” on plants and animals, and diagnostic, therapeutic, surgical
methods for the treatment of humans or animals.
Exclusion from patentability could only be done on the grounds of necessary
protection of order public or morality, and parties could provide limited
exceptions to the exclusive rights if those exceptions do not “unreasonably
conflict with a normal exploitation of the patent and do not unreasonably
prejudice the legitimate interests of the patent owner, taking account of the
legitimate interests of third parties.”
Criminal Penalties Measures for Infringers
The document asks that ?each party provide for criminal procedures and
penalties to be applied at least in cases of wilful trademark counterfeiting or
copyright or related rights piracy on a commercial scale, even in cases where
the infringements have no direct or indirect motivation of financial gain.
Criminal procedures and penalties would have to be
applied against people trying to record a motion picture in a cinema, for
example, as well as trademark counterfeiters. Penalties that include sentences
of imprisonment as well as monetary fines sufficiently high to provide a
deterrent to future infringements, consistent with a policy of removing the
infringer`s monetary incentive, should be applied, the document says.
The text also provides high protection of computer software and other materials
protected by copyright, including regulation of the acquisition and management
of software and other materials for government use.
Internet service providers would have legal incentives to cooperate with
copyright owners in deterring the unauthorised storage and transmission of
copyrighted materials, with providers being associated with preventing
copyrights infringement under pain of prosecution.
Domestic Support for TPP
On 14 February, 18 of the 435 members of the House of Representatives wrote a
letter to President Obama [pdf] calling for a high standard IP chapter in the
TPP, according to a US Chamber of Commerce press release. In the letter, the
signatories said that the TPP presents an opportunity to establish 21st century
IP protections that can serve as a template for future FTAs in the Asia-Pacific
region and around the world. They also asked that the ambition to conclude the
TPP negotiations by November 2011 should not be pursued at the expense of a
strong agreement with a modern IP chapter one that opens new markets for
American companies in today`s knowledge-based economy.
US Chamber of Commerce President and CEO Thomas
Donohue in November said the United States must seize another tremendous
opportunity to boost our competitiveness in the regionand that is to successfully negotiate the
TPP.
With the United States and 8 other countries taking part in the negotiations,
the TPP has the potential to become a cutting-edge free trade agreement which
other APEC countries may join over time, Donahue said. The Asia-Pacific
Economic Cooperation (APEC) has 21 members, among them the 8 countries
negotiating the TPP, Japan, and the Philippines. Some are expressing interest
in joining the negotiations now, which we welcome. But our first goal is to
achieve a comprehensive agreement one that covers all sectors, including
agriculture, with no exceptions for any party, he said.
KEI also published a US industry memo on IP in December, urging the US
government to seek the highest possible IP protections from TPP negotiating
parties.
Calls for Transparency, TRIPS Framework
In what seems to be a remake of the recently concluded Anti-Counterfeiting
Trade Agreement (ACTA) (IPW, IP Law, 6 December 2010), negotiations are opaque,
with civil society groups calling for greater transparency in countries
involved in the TPP.
A paper allegedly submitted by New Zealand in December, obtained by civil
society groups and published by Public Citizen, a US group, was interpreted as
showing that some disagreements had arisen between New Zealand and the US on
intellectual property. In the paper, the country says the World Trade
Organization Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) provides the adequate framework for the IP chapter of the agreement.
New Zealand asks for a “TRIPS-aligned” structure and warned against
strengthening IP standards “beyond those agreed to in TRIPS.” The paper said
“there is a tendency towards overprotection of IP in all our societies,
particularly in the areas of copyright and patents.”
The problems of overprotection are particularly acute for technology importing
countries, including developing countries, the paper said, adding that
countries trying to limit the TRIPS flexibilities simply act against the
interests of technology importing countries. It is also warning against the
temptation of a strict harmonisation of the IP regimes as the TPP region
consists of countries differing in size, incomes, levels of development and
economic structure.
Peter Maybarduk, an intellectual property lawyer at Public Citizen, told
Intellectual Property Watch that the TPP text submitted by New Zealand showed
“TRIPS” coherence, while the text provided by the US showed measures going
beyond the TRIPS agreement, known as “TRIPS-plus.”
The leaked proposed text on IP from New Zealand [pdf], and the text on
preliminary considerations on IP chapter from Chile [pdf], both submitted at
the last round of negotiations, along with the US proposal, are available from
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