Date: 10 March 2011
Source: www.keionline.org

The text is marked to be "protected from unauthorized disclosure," and the USTR is seeking to classify the document until four years from entry into force or the close of the negotiations. The document has been distributed to all member states participating in the TPP negotiations, so it is not secret from any of the parties in the negotiations. The document may also be subject to review by the hundreds of corporate insiders who serve on USTR advisory boards. It is, however, secret from the taxpayers and voters who live in the United States, and people everywhere who are going to live under the new norms. In this case, the secret text involves tough new rules for patents, copyright and related rights including broadcaster rights and expressions of folklore, digital rights management information, trademarks, domain names, geographic indicators, regulatory test data for pharmaceutical drugs and agricultural products. There are also more than 15 pages of obligations regarding the enforcement of those rights, including criminal sanctions against infringers.

KEI objects to the policy of making the negotiating text of intellectual property agreements secret, particularly when the documents are distributed to all parties in a negotiations, and thus are only secret from the public. The Congress needs to intervene and require that such texts be made public routinely.

Some quick examples of norms pushed by USTR

Copyright

• Copyright damages shall consider the suggested retail price or other legitimate measure of value submitted by the right holder.
• (art. 4.5) The term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:
• on the basis of the life of a natural person, the term shall be not be not less than the life of the author and 70 years after the author`s death;
• on a basis other than the life of a natural person, the term shall be: (i) not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or (ii) failing such authorized publication within 25 years from the creation of the work, performance, or phonogram, not less than 120 years from the end of the calendar year of the creation of the work, performance, or phonogram.
• Would eliminate any possibility of parallel trade in copyrighted books, journals, sheet music, sound recordings,
  computer programs, and audio and visual works (i.e., categories of products in which the value of the copyrighted
  material represents substantially all of the value of the product) (art. 4.2, and footnote 11)
• Each Party shall establish or maintain a system that provides for pre-established damages, which shall be available upon the election of the right holder
• Requires criminal enforcement for technological measures beyond WIPO Internet Treaties, even when there is not copyright infringement (art. 5.9)
• Impose a legal regime of ISP liability beyond the DMCA standards (art. 16.3)
• Requires legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; (art. 16.3.b.vi.A)
• Requires identifying internet users for any ISP, going beyond U.S. case law (art. 16.3.b.xi)
• Includes the text of the controversial US/KOREA side letter on shutting down web sites

Public Health

• No mention of Doha Declaration on TRIPS and Public Health or WHO Global Strategy on Public Health, Innovation and Intellectual Property.
• Pharmaceutical Products:
  2. [Placeholder for provisions related to data protection for pharmaceutical products]
  3. [Placeholder for provisions related to patent linkage]
  4. [Placeholder for provisions related to patent term/data protection relationship]
  5. [Placeholder for definitions of “new pharmaceutical product” and “new agricultural
  product”]
• 5. [Placeholder for “Bolar” provision] (art. 8.5)

Agriculture

• Parties agree to sign the International Convention for the Protection of New Varieties of Plants, 1991
• 10 years of exclusive rights in agricultural chemical test data (art. 9.1)

Patents

• Parties agree to Patent Cooperation Treaty and the Patent Law Treaty
• Patents shall be available for any new forms, uses, or methods of using a known product; and a new form, use, or method of using a known product may satisfy the criteria for patentability, even if such invention does not result in the enhancement of the known efficacy of that product. (art. 8.1)
• Requires patent for second use (art. 8.1)
• In civil and administrative proceedings involving patents, each Party shall provide for a rebuttable presumption that a patent is valid, and shall provide that each claim of a patent is presumed valid independently of the validity of the other claims.
• [Placeholder for provisions concerning patent term restoration/adjustment] (art. 8.6)
• Where a Party provides proceedings that permit a third party to oppose the grant of a patent, a Party shall not make such proceedings available before the grant of the patent. (art 8.7)
• USTR proposal in TPP:

Each Party may only exclude from patentability inventions, the prevention within its territory of the commercial exploitation of which is necessary to protect order public or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by law. (art. 8.3)

Which is more restrictive than the text of AUSFTA, which reads:

2. Each Party may only exclude from patentability: (a) inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect order public or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by law; and (b) diagnostic, therapeutic, and surgical methods for the treatment of humans and animals. [emphasis added]

• Each Party shall provide that a claimed invention is industrially applicable if it has a specific, substantial, and credible utility. (art. 8.12) Depending upon how you read this sentence, which also relates to Article 8.1, it either limits or expands the type of inventions that must be patented. The expansion of the obligation to grant patents would happen if the text is seen as a definition of industrially applicable.

General Enforcement Obligations

• Each Party shall provide ex officio border measures with respect to imported, exported, or in-transit merchandise, or merchandise in free trade zones, that is suspected of being counterfeit or confusingly similar trademark goods, or pirated copyright goods (art. 14.4)
• Requires adopting compensation for infringement without actual damages (art.12.3 and 4)
• For copyright and trademark, criminal punishment would apply even to non-for-profit infringement (art. 15.1)
• In determining damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed good or service, measured by the suggested retail price or other legitimate measure of value submitted by the right holder. (art. 12.3.b)

Consumer Protection and Competition Safeguards

Weak, meak or Missing

Comment

Overall, the USTR proposal for the TPP intellectual property chapter would:

(1) include a number of features that would lock-in as a global norm many controversial features of U.S. law, such as endless copyright terms.
(2) create new global norms that are contrary to U.S. legal traditions, such as those proposed to damages for infringement, the enforcement of patents against surgeons and other medical professional, rules concerning patents on biologic medicines, disclosure of information from ISPs, etc. (We will work on a detailed list).
(3) undermine many proposed reforms of the patent and copyright system, such as, for example, proposed legislation to increase access to orphaned copyrighted works by limiting damages for infringement, or statutory exclusions of "non-industrial" patents such as those issued for business methods.

These are complicated and important issues that have impact on people`s lives. The publication of the text, via a leak, will allow people who have the expertise and interest in the subjects to provide analysis and feedback on the proposals. The decision to make make this document secret from the public undermines the legitimacy of the TPP negotiations, and predictably strengthens special interests at the expense of the public. Of course, we have seen such secrecy before from USTR, but we thought the Obama Administration would change things. The topics covered by the TPP IPR Chapter to go the heart of access to medicine, food and knowledge, and the freedom to use knowledge and innovations. The contempt for democratic processes and the arrogance of those that insist on secret global norm setting is shocking.

For more on the transparency issue, see the July 22, 2009 NGO letter to the United States Trade Representative (USTR), recommending the USTR and other federal agencies reduce secrecy and increase transparency in negotiations that involve global norms for knowledge governance.

Keywords: TPP / IPR / TRIPS / US