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Leaked Chile, NZ texts; US positions on IP in Trans-Pacific FTA
23 กุมภาพันธ์ 2554
Date: 23 February 2011
Source: www.citizen.org
Link: http://citizen.org/access
Confidential texts submitted by Chile and New
Zealand to the Trans-Pacific free trade agreement negotiations are now
available here: http://citizen.org/access
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: http://www.citizen.org/documents/TPP-access-to-medicines-sign-on-letter.pdf
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.