treaty enforcement by Sarah Deer (CC BY 2.0)

treaty enforcement by Sarah Deer (CC BY 2.0)


The Trouble With the TPP, Day 25: The Treaties Within the Treaty

This week’s signing of the TPP in New Zealand provides a useful reminder that a potential ratification means committing to far more than just one (very large) trade agreement. One of the Troubles with the TPP is that the intellectual property chapter requires all countries to ratify or accede to as many as nine international IP treaties. In other words, the treaties within the treaty are a core part of the obligations that come with TPP.

Article 18.7 specifies that all countries have already ratified or acceded to three IP treaties: the Patent Cooperation Treaty, Paris Convention, and Berne Convention. More notably, there are as many as six additional treaties that must be ratified or acceded in order to ratify the TPP:

  • Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks
  • 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
  • WIPO Performances and Phonograms Treaty

Earlier in the negotiations, the U.S. was hoping to include several more treaties including the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974).

Supporters of the TPP will argue that the impact on Canada is limited since we have either already acceded to these treaties or are in the process of doing so. However, the Canadian decision to significantly alter its IP laws in compliance with these treaties reflects the broader pressures that have come from the TPP.  Absent those pressures, it is far from certain that Canada would have agreed to be bound by all of these treaties.

In fact, according to earlier leaked drafts, Canada opposed including the IP treaty obligations for much of the negotiations. In the 2013 leaked text, only the U.S. and Australia supported the treaty provision with almost the other TPP countries (Canada, Chile, New Zealand, Malaysia, Peru, Brunei, Vietnam, Japan, and Mexico) opposed. Singapore indicated that it was willing to follow the consensus.  A year later, not much had changed. The May 2014 leaked version shows that the satellite signals convention was shifted out of the mandatory list, but everything else – including the Canadian opposition – remained roughly the same. By the end of the negotiations, Canada caved on the issue and started the process of complying with multiple IP treaties, confirming yet again that the TPP has already had an impact on Canadian law well before any decision on ratification has been made.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures)