News from the Intellectual property table

 
From September 6 to 15, negotiators from the nine TPP countries convened at the Lansdowne Resort in Leesburg, VA for the 14th round of trade talks. The agenda for the intellectual property
table was quite ambitious including general provisions, cooperation, trademarks, geographical indications, and copyright provisions—limitations & exceptions, copyright presumption, internet retransmission, and internet satellite signals. Reportedly, the IP talks moved more slowly than expected.

Copyright issues
During negotiations on copyright issues, the United States Trade Representative Office (USTR) sought support for its proposal on limitations and exceptions tabled during the 13th round in San Diego, CA. Shortly before the 14th round, the draft text on limitations and exceptions leaked, enabling civil society groups to review the normally secret text. According to the leak, the USTR proposal includes FTA-standard three-step-test language and a paragraph partially derived from Section 107 of the U.S. Copyright Law which nevertheless fails to incorporate the full flexibilities of U.S. fair use. This is quite worrisome as it would limit the use of flexibilities provided by international norms. Such a framework could endanger internet freedoms, and access to information, culture, science, and education as well as the ability to use copyrighted material to promote innovation. Several groups including Public Citizen believe the proposal fails to reflect the “appropriate balance” claimed by USTR. Internet freedom advocates have stated that USTR “uses the most restrictive three-step test language, extends the test to exceptions and limitations not currently under the test and jeopardizes countries' ability to set [policies which] best fit their needs. The USTR proposal misses opportunities to use the TPP to strengthen limitations and exceptions further.”[1]  In the joint statement, the civil society groups express support for a different proposal advanced by New Zealand, Chile, Malaysia, Vietnam, and Brunei which provides countries with flexibility to establish an appropriate framework for their unique digital environments.[2]

A recent USTR proposal on the retransmission of television signals over the internet was also a subject of negotiation during the Leesburg round. In the February 2011 leaked text, there had only been a placeholder provision on retransmission. The current U.S. proposal is reportedly almost identical to the relevant provisions in the Korea-US FTA.



Geographical indications
Negotiators seem to have made some advances on the geographical indications text during the Leesburg round. In previous rounds, the USTR proposal was the subject of much controversy. In the February 2011 leaked text, the USTR proposal expanded the scope of trademark protection and limited geographical indications.[3] According to a Congressional Research Service (CRS) report released shortly before the 14th round, a group of U.S., Australian and New Zealand food and commodity organizations submitted a proposal to TPP negotiators that advanced limitations on geographical indications beyond those in the leaked U.S. proposal. The CRS report states, “This [food and commodity organizations] proposal’s  intent is to challenge the EU’s efforts to protect its expansive system of GIs in negotiating FTAs with other TPP countries, by creating exclusive rights for products that this group considers to have common names. This recommendation goes further than the GI provisions in an unauthenticated version of the U.S. intellectual property rights (IPR) text, which this group argues would reduce their ability to use common names in selling food products in TPP markets.”[4] Other TPP countries have opposed such recommendations as they are concerned for their local communities and/or are negotiating free trade agreements with the European Union, a strong supporter of geographical indications. Proponents of geographical indications argue that they can protect traditions and geographic diversity of product sources. Opponents, on the other hand, argue that trademark laws and regulations can adequately protect products with geographical names from acts of infringement and/or unfair competition. They believe that geographical indications should not constitute a field of protection separate from trademarks. While modifications have reportedly been made to the US-proposed text, issues of concern remain. Few details are known however, since the agreement is unavailable to the public, journalists, and even Members of Congress.



Access to medicines

The IP-maximalist and access-restrictive proposal advanced by the USTR on patents and pharmaceuticals was still not addressed in Leesburg. These extreme provisions have held up negotiations and have not been debated at the IP table since the 12th round in Dallas, TX (some have not been addressed since the 11th round in Melbourne). 



A separate section of the TPP text with possible consequences for access and health costs relates to pharmaceutical formularies. In Leesburg, USTR tabled a refined proposal for the annex on transparency rules for national drug pricing and reimbursement programs. While details are not known, there is concern that the proposal does not substantially improve upon the previous text. 


The 15th round of negotiations

The next round of negotiations will be taking place in Auckland, New Zealand from December 3-12. The agenda is still not known, but enforcement provisions and patents are likely to be scheduled as they have not been discussed since the 12th round. The US is internally reviewing its proposal on patents and access to medicines due to strong opposition from all eight other TPP countries. If USTR wants to advance negotiations on the issue, the current proposal must be scratched, and any new proposal must be made available to the public. It is imperative that such a consequential proposal take into account the health needs of citizens in each TPP country instead of only Big Pharma profit interests. 




[1] “Joint Statement on U.S. Trans-Pacific Partnership (TPP) Proposal on Exceptions and Limitations—Leesburg Round—August 2012,” available at: https://www.eff.org/document/new-joint-statement-civil-society-groups-us-tpp-copyright-proposal.

[2] Article QQ.G.16.2. … [NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]

[3] S. Flynn, M. Kaminski, B. Baker, J. Koo, “Public Interest Analysis of the US TPP Proposal for an IP Chapter,” American University Washington College of Law, December 2011, available at: http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1023&context=research.

[4] I. Fergusson, W. H. Cooper, R. Jurenas, B. Williams, “The Trans-Pacific Partnership Negotiations and Issues for Congress,” Congressional Research Service, September 5, 2012, p 27, available at: http://www.fas.org/sgp/crs/row/R42694.pdf.






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