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The U.S. Stands Alone: How the U.S. Is Increasingly Isolated on Intellectual Property Policy

Each April, the U.S. Trade Representative releases the Special 301 report which represents its take on the countries with inadequate intellectual property laws.  Inclusion on the report is often framed as an embarrassment as the U.S. seeks to paint those countries as out-of-step with international norms (Canadian officials have rightly dismissed the report as a lobbying document without substantive merit).  The latest leaks of country positions on the Trans Pacific Partnership highlight that the opposite is true. It is increasingly the U.S. that is out-of-step with international norms as it seeks to export laws that are widely rejected by most other countries. From its demands for the criminalization of copyright (even in cases of inadvertent infringement) to the prospect of termination of Internet access over allegations of violations, the U.S. approach finds little support among most of its allies. While Canada opposes the U.S. on virtually all remaining IP issues in the TPP, the U.S. is often isolated on each issue, sometimes entirely alone or occasionally supported by one or two other countries.

Consider the remaining IP issues in the TPP and respective support for the U.S. position:

Issue
Supporters of U.S. Position
Opposition to the U.S. Position
Patentability criteria Australia All other TPP countries (Japan reserves position)
Supplementary patent protection None All other TPP countries
Extend patent protection to new uses (plants, animals, surgical procedures) Singapore All other TPP countries (Japan reserves position)
Pharmaceutical: linkage None All other TPP countries
Pharmaceutical: data protection None All other TPP countries
Copyright: technological protection measures Australia, Peru, Mexico, Singapore Chile, Brunei, Malaysia, Vietnam, Japan (NZ, Canada reserve positions)
Copyright: term of protection None All other TPP countries
Copyright: parallel importation None All other TPP countries
Copyright: ISPs (Chilean proposal) None All other TPP countries (Japan reserves position)
Criminal offenses for unintentional infringement of copyright and trademark None All other TPP countries
Criminal penalties for unauthorized camcording NZ, Peru, Chile, Mexico, Singapore, Brunei, Vietnam, Japan Australia, Canada, Malaysia
Inclusion of other IP treaties for ratification and implementation Australia All other TPP countries (Singapore reserves position)
National treatment: maintain TRIPS exclusions Australia All other TPP countries (Mexico, Canada reserve position)
Trademarks: inclusion of scents Australia, NZ, Peru, Singapore All other TPP countries (Brunei reserves position)
Geographical Indications: protection through a brand All other TPP countries Chile (Australia, NZ reserve position)
Geographical Indications: systems for nullifying and opposing GIs recognized in other treaties Australia, NZ All other TPP countries (Japan reserves position)
Geographical Indications: do not prohibit third party use of translated GI None All other TPP countries (Japan reserves position)
Geographical Indications: existence of GI should not be reason to reject registration or renewal of trademark None All other TPP countries (Japan reserves position)

While the U.S. is aligned with Australia on several key issues, for the most part its proposals are not supported by other TPP countries. The numerous disagreements place on the spotlight on an uncomfortable reality for the U.S.: its intellectual property demands are increasingly out-of-step with the rest of the world and do not represent either actual or emerging international norms.

46 Comments

  1. Down with down under
    What’s up with Australia? They seem to be kowtowing an awful lot to the USA. Must have some dirt or a really large carrot.

  2. Chris Brand says:

    Australia
    I haven’t looked into this in detail, but I know that Australia signed a bilateral trade agreement with the US a few years back. I suspect they’ve already accepted a number of these things, so they’re basically “no change” for Australia now.

  3. the inside joke
    The us government always finds a method to break the rules, so why bother.

    The new Australian government is probably bought and paid for, as the GCHQ is in Britain.

  4. remove U.S.
    Why don’t the other countries just sign an agreement sans the U.S.

  5. I’ve been reading disturbing reports on Twitter that in Singapore, “all but one” of the negotiating countries have “caved” and agreed to support the US positions on the IP chapter. The source of this information appears to be a publication called the “Washington Trade Daily” which I’ve never heard of. Have you heard anything about these rumors?

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  44. Mrs Kathrine Lisa says:

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