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  Leaked Chile, NZ texts; US positions on IP in Trans-Pacific FTA
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Date: 23 February 2011



Confidential texts submitted by Chile and New Zealand to the Trans-Pacific free trade agreement negotiations are now available here:

And at these urls:

The United States submitted a proposed intellectual property chapter in Santiago last week, but left placeholders for some of the most controversial provisions still under debate in Washington, including placeholders for provisions that could hinder access to medicines.  Public health groups from TPP countries unveiled a letter to trade negotiators in Santiago, urging the parties "to end the harmful impact of trade agreements on access to medicines."  Available here:

The U.S. proposed text already includes aggressive positions in the area of copyright and digital enforcement, summarized here by Jane Kelsey:

And here by Inside US Trade:

Inside U.S. Trade - 02/18/2011
U.S. TPP Partial IPR Text Goes Beyond Old FTA Provisions On Copyrights
Posted: February 17, 2011
The U.S. this week tabled legal text on intellectual property rights (IPR) at the fifth round of Trans-Pacific Partnership (TPP) negotiations that appears to signal strong protections for copyright holders but leaves placeholders for provisions in more controversial areas, such as patent provisions affecting access to medicines and the issue of secondary liability, sources said.

The text does not fill in any provisions for the controversial topics of patent linkage, patent term extension and data exclusivity, which were the three areas of a May 10, 2007, deal between the Bush administration and House Democrats. The Office of the U.S. Trade Representative still does not have a position in these areas for TPP, sources said.

This week, 18 House members, including Judiciary Committee Chairman Lamar Smith (R-TX), pressed USTR to pursue the highest level of protection for IPR in the TPP, and praised testimony from U.S. Patent and Trademark Office Director David Kappos that provisions in the U.S.-Korea free trade agreement are the "starting point" for TPP discussions on IPR.

Industry groups are eager to use the Korea FTA as the starting point for the TPP talks because the May 10, 2007, deal on IPR, which loosened IPR protections for pharmaceutical companies, did not apply to the Korea FTA. Access to medicines groups want to use the May 10, 2007, deal as the starting point for TPP.

The U.S. legal text for the TPP talks shows that the U.S. is supporting a position that would give a copyright holder the authority to notify the U.S. government and stop importation of its copyrighted goods from another country, which importers could look to do if they can buy those goods cheaply in other countries, sources said.

While the U.S. has this provision in its own copyright law, it has never before secured similar language in a free trade agreement, one source said.

Under U.S. copyright law, there are a number of exceptions from this basic right, including for shipments of up to 2,000 copies of a particular work that are for use and not for sale; imports of a single copy of a copyrighted good; imports that are part of a person`s personal baggage; and if the copies are for scholarly, educational or religious purposes.

One source said the U.S. simply put a placeholder for possible future exceptions in its TPP text, but did not list any.

The U.S.-Australia FTA contains a provision that gives similar authority to a patent holder, such that a patent holder can notify the U.S. government and prevent the importation of a patented product if their consent has not been obtained prior to import. However, that FTA does not contain a similar provision for copyrights, one source said.

The U.S. TPP legal text also would give copyright holders the authority to prohibit temporary reproductions of copyrighted works, sources said.

This is not as clear a departure from past precedent, as the Korea FTA has a similar provision that allows authors, performers and producers of phonograms to authorize or prohibit reproductions of their work, including temporary storage in electronic form.

The Korea FTA provides some exceptions, as it includes a footnote that gives the United States or South Korea the ability to include limitations and exceptions that "do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder."

These exceptions can include those for fair use, which includes use of a work for certain business activities, educational and commentary purposes, among others. Once again, the U.S. IPR text contains placeholder language for any possible exceptions that could be negotiated in the future, one source said.

Informed sources said the U.S. has left a placeholder on whether it will eventually include a secondary liability doctrine in its legal text. This measure is feared by Internet companies including search engines and Internet service providers (ISPs) because it could hold them liable for infringing content that is posted by users.

An industry source said a secondary liability mandate has never been included within a U.S. trade agreement. The U.S. had initially proposed that such a provision be included in the plurilateral Anti-Counterfeiting Trade Agreement (ACTA) but this effort failed after Internet companies mounted pressure to remove the secondary liability proposal.

The U.S. has previously included provisions that allow ISPs to avoid liability through a notification procedure that involves working with a right holder to take down infringing material. It included such "safe harbors" for ISPs in the Korea FTA through a side letter that details this notification procedure.

In their Feb. 14 letter, the House members argue in stark terms that the U.S. "has more to lose from weak IP standards in foreign markets than any other nation," and that inadequate protection prevents industry from making the investments to develop new technologies "that could otherwise save or enhance lives."

In addition to Smith, the letter was signed by House Foreign Affairs Committee Ranking Member Howard Berman (D-CA) and 16 other House members.

Those other members are Reps. Bob Goodlatte (R-VA), Howard Coble (R-NC), Tom Reed (R-NY), Elton Gallegly (R-CA), Marsha Blackburn (R-TN), Vern Buchannan (R-FL), Tom Marino (R-PA), Aaron Schock (R-IL), Dennis Ross (R-FL), Adam Smith (D-WA),Adam Schiff (D-CA), Jay Inslee (D-WA), John Barrow (D-GA), Edolphus Towns (D-NY), Hank Johnson (D-GA), and Rick Larsen (D-WA).

The letter praised the Korea FTA as a starting point, which would move the U.S. away from the May 10, 2007 agreement, which softened patent protections in trade deals with Colombia, Panama and Peru. The Korea FTA was not affected by this 2007 agreement and contains stronger patent provisions.

For example, the Korea FTA makes it mandatory for South Korea to put in place a system of patent linkage, which requires the Korean government regulators to investigate and confirm that a generic drug seeking marketing approval does not infringe an existing patent claim.

The May 10 agreement makes it optional for Peru, Panama and Colombia to maintain a system of patent linkage. Public health advocates argue that such a system is unreasonable for a developing country, which might not have the resources to investigate patent infringements prior to the manufacture of generic drugs.


Keywords: US / IP / FTA