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

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Monday December 09, 2013
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.
Comments (18)add comment

Crockett said:

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.
December 09, 2013

Chris Brand said:

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.
December 09, 2013

iSpy said:

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.
December 09, 2013

mike said:

remove U.S.
Why don't the other countries just sign an agreement sans the U.S.
December 10, 2013

AWJ said:

...
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?
December 10, 2013

Philippe Dupuy said:

Co-ordinator Casino Environment Centre, Nsw Australia
There is an urgent need to organise mass demonstrations all over Australia! The TPP is a direct threat to Australia's sovereignty and has huge implications on our ability to protect an already seriously damaged environment.Examples of big firms taking countries to WTA arbitration under the dispute resolution agreement and fining them astronomical sums of money is real. I just signed a petition about Costa Rica being fined one billion dollars by a Canadian firm.
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