Leaked: US Proposal for TPP agreement IP chapter

The complete Feb 10, 2011 text of the US proposal for the TPP IPR chapter

http://keionline.org/node/1091

KEI has obtained the February 10, 2011 US government draft of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP).

http://keionline.org/sites/default/files/tpp-10feb2011-us-text-ipr-chapter.pdf [Scoop copy: tpp10feb2011ustextiprchapter.pdf]

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 particpating 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 board. 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 oblgiations 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.

This Document Contains TPP CONFIDENTIAL Information

MODIFIED HANDLING AUTHORIZED*

Derived From: Classification Guidance

dated March 4, 2010

Reason: 1.4(b)

Declassify on: Four years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations.

* This document must be protected from unauthorized disclosure, but may be mailed or transmitted over unclassified e-mail or fax, discussed over unsecured phone lines, and stored on unclassified computer systems. It must be stored in a locked or secured building, room, or container.

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.

• 95 year copyright minimum term for works for hire

• Would eliminate any possibility of parallel trade in any copyrighted good. Article 4.2

• 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 chemcial 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)

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 event 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. (Article 12.3.b)

Consumer Protection and Competition Safeguards

Weak, meak or Missing

Attachment / Size

tpp-10feb2011-us-text-ipr-chapter.pdf / 272.86 KB

[Scoop copy: tpp10feb2011ustextiprchapter.pdf]

Original post: The complete Feb 10, 2011 text of the US proposal for the TPP IPR chapter. More "Attending and mending the knowledge ecosystem" at Knowledge Ecology International - keionline.org

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