Wikileaks released an updated version of the secret Trans Pacific Partnership intellectual property chapter this morning (background on the TPP from my appearance before the House of Commons Standing Committee on International Trade earlier this year). The leaked text, which runs 95 pages in length and is current to August 2013, provides a detailed look not only at the chapter – it includes the full text – but also the specific positions being taken by all negotiating countries.
From a Canadian perspective, there is good news and bad news. The good news is that Canada is pushing back against many U.S. demands by promoting provisions that are consistent with current Canadian law. Canada is often joined by New Zealand, Malaysia, Mexico, Chile, Vietnam, Peru, and Brunei Darussalam. Japan and Singapore are part of this same group on many issues. Interestingly, Canada has also promoted Canadian-specific solutions on many issues. The bad news is that the U.S. – often joined by Australia – is demanding that Canada rollback its recent copyright reform legislation with a long list of draconian proposals.
It is instructive to see how different the objectives of the U.S. are on intellectual property when compared to virtually all other countries. With the exception of the U.S., Japan, and Australia, all other TPP countries have proposed an objectives article (Article QQ.A.2) that references the need for balance, promotion of the public domain, protection of public health, and measures to ensure that IP rights themselves do not become barriers to trade. The opposition to these objective by the U.S. and Japan (Australia has not taken a position) speaks volumes about their goals for the TPP.
Canada is also part of a large group (which includes New Zealand, Malaysia, Peru, Brunei, Vietnam, Chile, Japan, and Mexico) that opposes a U.S. and Australian demand that all TPP countries ratify ten other intellectual property treaties by the time the TPP takes effect (Article QQ.A.6). Canada has ratified some, but not all, of the listed treaties.
Canada has also proposed (together with New Zealand, Singapore, Chile, and Malaysia) a principles article that would permit provisions “to prevent the abuse of intellectual property rights by rights holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.” This principle is reflected in Article QQ.A.9, which safeguards the right of countries to adopt measures to prevent abuse of IP rights and anti-competitive practices from such abuse. The U.S. and Japan oppose this article.
Chile, Vietnam and Peru have proposed an article (Article QQ.A.13) focused on the public domain, including the development of public databases that identify works in the public domain. Canada does not appear to have taken a position on this article.
The majority of chapter focuses on reforms to virtually all aspects of intellectual property including patents, copyright, trademarks, and geographic indications. There are also detailed proposals for Internet enforcement, including liability of Internet service providers. These require careful study and I will examine them in subsequent posts.