Australia: The Trans-Pacific Partnership Agreement

Another Bite of the Cherry for IP Protection?
Last Updated: 25 February 2012
Article by Alec Christie and Adeline Tan

Most people will have noticed that President Obama's recent visit to the Asia Pacific region included high-profile discussions on the Trans-Pacific Partnership (TPP).

The TPP is a plurilateral free trade agreement that seeks to liberalise trade in the Asia Pacific Region. While there has been an agreement in place between the TPP's original member countries since 2005, the recent interest of the Us and others has significantly raised the TPP's profile.

Current proposals on the table include introducing more stringent requirements on ISPs and closing loopholes allowing generic manufacturers to access clinical trial data.

In addition to traditional trade barriers such as tariffs (covered in the existing agreement), the TPP is expected to be amended or augmented to cover a broad range of issues including the environment, genetic resources, cloud computing, government procurement and digital authentication.

The US recommendations that the TPP expand Intellectual Property (IP) protection beyond the World Trade Organisation (WTO) - ie Trade-Related Aspects of Intellectual Property Rights (TRIPS) - commitments have attracted the most attention and appear to be among the most controversial aspects of the TPP.

WHO IS IN AND OUT?

Brunei, Chile, New Zealand and Singapore are the original signatories to the TPP. Since then, Australia, Malaysia, Peru, the US and Vietnam have joined TPP negotiations (although they have not yet signed the TPP). Japan, Canada, Mexico, South Korea, Taiwan and the Philippines have also recently announced an interest in joining the TPP negotiations.

All Asia Pacific Economic Co-operation (APEC) countries are able to apply to join the TPP. Whether an applicant country is accepted primarily depends on its trade liberalisation timetable.

China is notably absent from the current TPP negotiations. The reasons why China has not joined the negotiations are unclear but, as some commentors have suggested, it may be because China would have to agree to significantly reduce existing trade barriers before being allowed to join the TPP.

WHAT IS ON THE TABLE AS REGARDS IP?

The recent release of the TPP's broad framework confirmed that members were considering the following concepts for inclusion in the TPP.

Members are to reinforce and develop the existing WTO Agreement on TRIPS rights and obligations to ensure an effective and balanced approach and provide more harmonised IP protections throughout the TPP member countries. Up for discussion: trademarks, geographical indicators, patents, copyright and related rights, trade secrets, data required for approval of certain regulated products, IP enforcement, genetic resources and traditional knowledge.

E-commerce

Members are to address impediments to consumers and businesses embracing e-commerce. Up for discussion: customs duties in the digital environment, authentication of electronic transactions and consumer protection, information flows, treatment of digital products and cloud computing.

Telecommunications

Members are to promote competitive access for telecommunications providers to benefit consumers and help businesses become more competitive. Up for discussion: the need for reasonable supplier network physical and interconnected access, regulatory process transparency, technology choice and the high cost of international mobile roaming.

MATTERS UNDER CONSIDERATION

While the broad TPP framework has been publicised, the specific terms of current TPP negotiations and the positions of various member countries remain (or at least were intended to remain) secret. Based on a leaked draft of the IP Chapter of the revised TPP (as proposed by the us), it has been revealed that the following specific matters are being considered in negotiations:

  • Providing for the ability of copyright owners in a member country to prevent the parallel importation into that member country of their works
  • Extending copyright protection based on a known author to 70 years after death of the author and, where the author is not known, to 95 years after first publication or 120 years from creation
  • Augmenting the ban on circumventing technological protection measures and encryption of cable/satellite broadcasts and introducing/harmonising criminal sanctions for breach
  • Introducing more stringent requirements for "safe harbour" protections, including legal incentives for Internet Service Providers (ISPS) to cooperate with copyright owners and requiring identification of internet users by i s ps
  • Imposing statutory damages for copyright, trademark and patent infringement
  • Protecting geographical indications, sounds and scents under trademark laws
  • Reducing procedural difficulties in obtaining patents, extending the scope of patent monopoly rights and limiting the capacity to challenge patents
  • Data exclusivity - preventing generic manufacturers of pharmaceuticals from using clinical trial, efficacy and safety data of innovators to register generic versions of patented drugs (the TPP text allows public health exceptions in accordance with TRIPS).

If these measures are adopted in the final revised version of the TPP, the TPP will have a significant impact on the pharmaceutical, Information Technology (IT) and entertainment industries in member countries and the region.

WHAT COULD THE TPP MEAN FOR MEMBER COUNTRIES?

How the TPP will ultimately affect its member countries will, of course, depend on the final revised terms of the TPP which, in turn, will depend on the appetite of member countries for trade liberalisation reforms and other key reforms, such as in IP.

While the final form of the revised TPP is still some way off, the US proposals on IP protections in the initial drafts of the IP Chapter show a clear intention to significantly strengthen and harmonise the IP protections in the region, exceeding current TRIPS protections.

A final text of the revised TPP is expected to be approved by member and negotiating countries by July 2012.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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