Copyright Patent

Trans-Pacific Partnership Act – A look at the IP provisions

Two months ago, we wrote about the ‘child of ACTA‘, the TPP (Trans-Pacific Partnership Agreement) (that post was covered by ExpressPharma along with more Indian views on the TPP here). Unfortunately though, the ‘shock’ factor that the ACTA had brought with it no longer seems to be present as the public conscience seems to be tired of dealing with the same issues over and over again. And that’s precisely what the TPP seems to be doing. The same lobbyists seem to be bent on getting their way, repeating several of the policy decisions that the ACTA was severely criticized for and throwing in a few extras for good measure. Policy questions aside, the primary concern is the lack of a democratic or a transparent process in the negotiations. Certain key stakeholders have been sidelined from discussions even as the USTR continues to push for it’s acceptance while trying to sidestep US’ own Congressional oversight (The mass domestic protests which led to Senators finally rejecting SOPA/PIPA probably contributes to this).
Image from here. A cartoon showing a more broad picture (not specific to TPP) of how I view IP policy being made in the world today.
[M]y office is responsible for conducting oversight over the USTR and trade negotiations. To do that, I asked that my staff obtain the proper security credentials to view the information that USTR keeps confidential and secret. This is material that fully describes what the USTR is seeking in the TPP talks on behalf of the American people and on behalf of Congress. More than two months after receiving the proper security credentials, my staff is still barred from viewing the details of the proposals that USTR is advancing.
Anyway, it’s no news that the USTR is a very aggressive IP-maximalist, so let’s look at what the latest updates on the IP parts of the TPP are. The 14th round of negotiations are currently going on in Virginia right now and the contents below are based on leaked drafts and comments that Knowledge Ecology International, Electronic Frontier Foundation and Congressional Research Service have discussed.
To recap from my last post:
The TPP is ostensibly a Free Trade Agreement that the US is negotiating with 8 other nations – Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore and Brunei; Mexico and Canada have also been invited to join in and Japan is expected to join in as well. The rather secretive negotiations have been going on since 2009 and are expected to be complete by the end of 2012. The agreement also is being left open for other countries to join at later points in time. Of course if this is passed, then there’s no doubt that it will be used as a new ‘standard’.
US is pushing for a TRIPS plus minimum standard including requiring all members signing the WIPO Performances and Phonograms Treaty. This is the treaty on which USA’s DMCA is based and which require Technology Protection Methods and Rights Management Information measures – more on that below. On the other hand, New Zealand is apparently circulating a discussion document advocating a position that does not raise the floor as prescribed by the TRIPS Agreement. Some of the IP provisions discussed so far are as below:
1. ISP liability.
Aside from asking ISPs to implement a 3 strike policy (3 warnings lead to disruption of a user’s internet service), it also enables:
– the imposition of responsibility to filter content for potentially copyright infringing material on ISPs,
– the ISP’s obligation to disclose customers identity to copyright holders on infringement allegations.
– the question of a ‘side letter’, an added provision, which would enable a strict notice-and-take-down regime, absent due process and judicial involvement in the takedowns..
2. Criminal liability.
The US is asking for criminal penalties for the following: “willful’ trademark infringement, copyright infringement on commercial scale (where ‘commercial scale’ is defined to include ‘no financial gain’ – so, file sharing, for example), importing counterfeit labeling and packaging whether willful or not, and cam-cording in movie theaters (!?).
3. Pharmaceuticals.
Different patent addendums including data exclusivity, mandatory patent linkage and patent term extensions with a standard of a 5 year exclusion period are being advocated by the USTR. Other members in the “Trade Enhancing Access to Medicines” group however are opposing this stance and advocating a cap of 5 years from US Market Approval for data exclusivity and optional patent linkage and patent term extension provisions.
4. Biologics.
Generally considered distinct from pharmaceuticals, biologics are medicinal preparations derived from living organisms. There seems to be discussion as to whether a separate data exclusivity period, such as the 12 year period in US, should be given to biologics. The discussion revolves around whether biologics require more investments than standard pharmaceuticals to be commercially viable.
5. Geographical Indications.
USTR argued and put forward the recommendation for GIs to enforceable only for compound phrases, as opposed to single phrase GIs. As per the CRS Report, “For example, GI protection would extend to cheese marked Parmigiano Reggiano – a compound term – but not to parmesan, which would be considered a common name not eligible for special protection. The group states that limiting GI designations only to compound names would prevent confusion with the use of related common or generic terms.” It’s worth noting that the EU has historically been very strong of protecting GIs since they have quite a few of them. Unlike the EU and several developing countries though, the USA (to my knowledge) does not have a significant number of GIs.
6. Technical Protection Measures.
While CRS doesn’t mention this in their analysis, the Feb 2011 leaked chapter also talks about enforcing TPMs. This would make circumvention of locking-out technologies an offense even if there is no underlying copyright infringement claim. ie, if someone accesses legal content for legal purposes but by circumventing TPMs (introduced to block the person from that legal use), they will be guilty of a criminal offense.
7. Expand copyright duration.
US’ proposed IP chapter also extends the term of copyright protection beyond the TRIPS mandated period of ‘life of author + 50 years’ to ‘life of author + 70 years’, and up to 120 years for works owned by corporations.
8. Banning temporary reproductions. 
More surprise from USA’s draft as they try to put forth a provision which would treat unauthorized temporary reproductions as infringement. While this would cause severe disruption, if it includes cache/RAM memories, then that would effectively include every thing that is accessed by a computer. So I am assuming even in their own draft, that some kind of limitation would be placed on this.
Most of these developments are problematic for innovation and consumer access. If there is any news of more development on this, I will write a more in depth post analyzing how these provisions may affect us.

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