Several recent bilateral and regional Free Trade Agreements (FTAs) appear to be exporting standards of IP protection that extend well beyond those prescribed by the Agreement on Trade-Related Intellectual Property Rights (TRIPS). These FTAs include the Trans-Pacific Partnership (TPP), the Trade in Services Agreement (TISA), the Regional Comprehensive Economic Partnership (RCEP) and the Transatlantic Trade and Investment Partnership (TTIP).
In this two-part post, I have scrutinised the TPP, TISA and RCEP that deal with IP and the digital economy vis-a-vis the current Indian legal standard for compliance with their provisions. For most of the IP section, I have assumed that the current Indian standard is TRIPS-compliant (e.g. with respect to data exclusivity), and therefore used the TRIPS standard interchangeably with the current Indian position. Below, I have discussed those provisions in these agreements that generate new international obligations for India. These include obligations that Indian legislators have already foreseen and complied with (such as the legal backing for TPMs), as well as obligations that would require a modification of the prevailing Indian standard.
Summary of findings
| TPP | TISA | RCEP | TRIPS/Current Indian Standard |
E-commerce |
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| Zero customs duty on digital products | Similar to TPP | — | TPP-compliant |
| Non-discrimination for foreign digital products | Government procurements exempt | — | None, as far as government procurement of software is concerned |
| Personal information protection | Similar to TPP | — | TPP-compliant |
| Cross-border information flow | Similar to TPP, unless HK proposal is accepted by negotiators | — | Possibly non-compliant with TPP, depending on an interpretation of “legitimate public policy objective” in TPP Article 14.11.3 and TISA E-commerce Annex Draft Art. 2.4. Indian law requires the data recipient to comply with Indian data protection standards as a bare minimum. |
| Prohibition on server localisation | Similar to TPP, may be more expansive if “or investing in its territory” is accepted by negotiators | — | None |
Intellectual property |
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| — | — | Commitment to accede to the WCT/WPPT/Beijing Treaty/UPOV | N/A |
| Non-visual trade marks | — | Similar to TPP, with opposition for scent marks | TPP-compliant in respect of sound marks, possibly non-compliant in respect of smell marks. RCEP-compliant if IN opposition is accepted by negotiators. |
| No rights for prior users of registered marks | — | Prior users protected | TPP non-compliant; RCEP-compliant. |
| Expansive definition of patentable subject matter | — | Similar to TPP, but may have changed in a more recent draft | TPP non-compliant — specifically with respect to evergreening and software patents. |
| Patent term adjustment for processing delays, and specific term adjustment for pharmaceutical marketing approval | — | Similar to TPP | TPP/RCEP non-compliant |
| 10 year data exclusivity for agrochemicals | — | — | TPP non-compliant |
| Five year data exclusivity for drugs | — | Identical to TPP | TPP non-compliant |
| Eight year data exclusivity for biologics | — | — | TPP non-compliant |
| Patent linkage | — | — | TPP non-compliant |
| Life plus 70 copyright term | — | — | TPP non-compliant |
| Anti-circumvention measures | — | Similar to TPP | Possibly TPP non-compliant — mens rea requirement |
| Presumption in favour of patent/trademark/copyright validity | — | — | Possibly TPP non-compliant, especially with respect to patents |
| Criminal sanctions for trade secret misappropriation | — | — | TPP non-compliant |
“Who cares?”
This piece flags the most concerning elements of these treaties as they stand today, in terms of the IP obligations that India would import as a consequence of signing up.
But first — why must we concern ourselves with the implications of FTAs that we are (barring the RCEP) not even a party to?
There exists a three-fold answer: first, there is a growing perception that international standard-setting, at least in the IP space, is increasingly moving away from traditional multilateral regimes such as the TRIPS, and entering the turf of treaties styled as investment or free trade agreements. A passive approach to FTAs (especially those that bind significant portions of the world’s economic muscle) is today equivalent to a passive approach to international IP norm-setting. Line-drawing exercises in international law inherently entail distributive effects, and therefore are bound to benefit the interests of participants in these processes.
Second, accession to these FTAs is never out of the question. Nor is the possibility that parties to existing FTAs may require equivalent commitments in bilateral negotiations with non-parties such as India. It would be extremely convenient, for instance, for the US to ask India to accept a data exclusivity commitment in a hypothetical future India-US FTA, simply by pointing out that a similar provision exists in the TPP, which regulates trade between the US and many other Asian countries.
Third, the risk of being required to absorb TPP-equivalent standards as a pre-condition in bilateral negotiations is much higher for still poorer countries, who need the TRIPS flexibilities more than India.
Methodology
Of the treaties surveyed, the only one whose final text (pertaining to IP and e-commerce, the focus of this piece) is available in the public domain is the TPP. A draft leaked in October 2015 is the latest text available for the RCEP, while the latest TISA documents were leaked in May 2016. In addition, the RCEP does not propose to legislate on e-commerce, meaning that only its effects on IP norms can be measured, while the TISA’s IP chapter is yet to be leaked, meaning that only its effects on e-commerce can be examined. I will be examining the impact of the TPP, and (where feasible) the RCEP and the TISA on IP and the digital economy. I have only highlighted those instances where these agreements create significant new international obligations for India, if we were to accede to them.
Over the next post, I will display a highlight reel of the most problematic provisions in these agreements from an Indian perspective.
(This piece was originally published on the ORF website.)
