INTELLECTUAL PROPERTY PROVISIONS IN TPP (GOOD INDICATORS OF WHAT WILL BE TTIP)
Intellectual property provisions in TPP (which is a good indicator of what will be in TTIP)
TPP leaked IP chapter summary (13 Nov 2013)
Prepared by MS
Note: This is a summary of the IP chapter made available by Wikileaks. TPP (or ‘Trans-Pacific Partnership’ is not the same as TTIP which is between the EU and US. TPP is currently being negotiated in secret between 12 countries including the US, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand & Brunei Darussalam. Clearly however, the US and key players are minded to ‘harmonise’ laws worldwide so the IP chapter in TPP is likely to be a good indicator of what will be found in IP chapter in TTIP.
Introduction (the below is not part of the TPP summary)
What is intellectual property (IP) and why is it important?
IP, or ‘intellectual property’ is about copyright, trademark and patent law. IP law grants owners of IP the right to stop other people using their IP, or can place restrictions on use of its IP (for example, requiring payment, or making use time limited).
In our everyday lives we come across intellectual property a lot – for example – we pay for proprietary software provided by Microsoft, and Microsoft can stop people from downloading or sharing its software illegally, through legal action. Here’s another example: Monsanto created certain GM crops and has patented certain plant varieties. It can (and has) sue(d) farmers who use those plant varieties without licence from Monsanto. The patenting of life is extremely worrying. Farmers in countries like India are threatened with legal action if they save their seed, a traditional practice which preserves seed diversity.
IP laws affect lots of areas of our lives. They affect our ability to access life saving drugs. Trademarks are key to marketing strategies. Copyrights are a key factor in enabling companies like Microsoft to rise to quasi superpower status – because copyrights protect commercially valuable materials and enable companies to stop or restrict others from using it.
Summary of key points in TPP IP chapter
The stated aim of the negotiators is to promote economic development through the development and enforcement of IP rights.
There seems to be a tension in the document between the need of individual countries to not to fetter their right to protect the public health, including by ensuring citizens have access to medicines, and the corporate interest to have strong IP rights to preserve their monopolies on products and profits. It seems that countries may protect the public health ‘provided that such measures are consistent with this chapter’. (p3) – ie – the IP rights trump public health measures.
Countries are required to sign up to or confirm their commitment to the Declaration on the TRIPS Agreement on Public Health. TRIPS is a comprehensive international IP treaty. It’s not clear exactly how TRIPS sits with TPP.
Pharmaceutical company Pfizer played a key role, in influencing the US to link IP policy to trade policy in the 1980s and 1990s and was a major lobbyist behind TRIPS. Pfizer more than other pharma companies had invested in developing countries and wanted to ensure that Countries are required to ratify a long list of international IP agreements by signing up to TPP.
There seems to be conflicting views between countries on whether the IP chapter should trump reduce measures to preserve biodiversity which countries have agreed on. This is a sign the environment will lose out to the corporate interest. (see p9)
PATENTS –seems to be a key area of disagreement between US & others:
The US (on it own) wants it to be mandatory that patents are made available for:
- plants and animals
- diagnostic purposes for treating people or animals
- essentially biological processes for producing plants/ animals
Most other countries oppose this approach and want instead the right to exclude the above from the patent regime. (see p28)
The US is also alone (and opposed by all other countries) in wanting provisions which appear to be of main benefit to pharma companies – to ensure that marketing approval applications are dealt with speedily, and to grant extensions of patents on ‘new pharmaceutical products’ at the request of the patent owner (ie. the pharma company). (see p34)
Traditional knowledge and genetic resources – p45
The text will allow countries to exploit traditional knowledge under IP rules, however there are some limited safeguards built into the text, including obtaining informed consent. Experience has shown these safeguards mean little.
Criminal penalties & enforcement of IP p54
There is lot of text concerning criminal sanctions for breaches of IP. Countries shall be required to have in place the criminal procedures to deal with infringers. There is some discussion over who should be exempted from prosecution for breach (eg. universities). Penalties will include prison as well as fines (p79).
National courts will have to ensure that infringers of IP pays the rights owner ‘adequate damages’ (money). Judges shall at least have the right to consider lost profits in their calculations of appropriate damages awards. p68 – 9
Developing countries would not get the right to produce cheap generic versions of drugs if it would erode their profits.
Patent Cooperation Treaty (1970), as amended in 1979;
Paris Convention for the Protection of Industrial Property (1967);
Berne Convention for the Protection of Literary and Artistic Works (1971);
Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);
Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
International Convention for the Protection of New Varieties of Plants [MX propose: (1961) as revised in 1972, 1978 or] (1991) (UPOV Convention);
Singapore Treaty on the Law of Trademarks (2006);
WIPO Copyright Treaty (1996); and
WIPO Performances and Phonograms Treaty (1996).