The intellectual property chapter has not been a focal point of the NAFTA negotiations this week in Montreal, but the successful conclusion of the TPP11 (or CPTPP) serves as a reminder that it is likely to emerge as a contentious issue in the months ahead. The U.S. position on the NAFTA IP chapter is clear: it wants to replicate the original TPP IP chapter. Yet Canada now stands opposed to that chapter having backed the suspension of many of its provisions including copyright term extension, digital locks, notice-and-takedown, patent protections, biologics protections, and pharmaceutical plan rules. In fact, Prime Minister Justin Trudeau this week cited changes to the IP provisions as one example of how the government worked to make the TPP more progressive.
The Canadian government maintains that it is seeking a similarly progressive approach in a revised NAFTA. Many of the TPP participants have now effectively acknowledged that the TPP IP chapter was imbalanced and not in their national interest. For example, the Government of New Zealand has posted a list of the suspended TPP provisions and what they mean for that country. The change is dramatic as the NZ government admits the TPP IP provisions would have cost hundreds of millions of dollars, required significant legislative reforms, and restricted future policy flexibility.
Canada faced many of the same costs and restrictions under the TPP IP chapter. The full list of suspended IP provisions, with links to my original posts assessing the Canadian impact, include:
- Patentable Subject Matter – Article 18.37.2 and 18.37.4 (Second Sentence)
- Patent Term Adjustment for Unreasonable Granting Authority Delays – Article 18.46
- Patent Term Adjustment for Unreasonable Curtailment – Article 18.48
- Protection of Undisclosed Test or Other Data- Article 18.50
- Biologics – Article 18.51
- Term of Protection for Copyright and Related Rights – Article 18.63
- Technological Protection Measures (TPMs) – Article 18.68
- Rights Management Information (RMI) – Article 18.69
- Protection of Encrypted Program-Carrying Satellite and Cable Signals – Article 18.79
- Legal Remedies and Safe Harbours – Article 18.82 and Annexes 18-E and 18-F
- Conservation and Trade (measures ‘to combat’ trade) – Article 20.17.5 – suspend “or another applicable law” and footnote 26
- Transparency and Procedural Fairness for Pharmaceutical Products and Medical Devices – suspend Annex 26A – Article 3 on Procedural Fairness
The U.S. will seek to bring these provisions back in NAFTA. With the Canadian government having taken note of the public opposition to these rules and the Prime Minister emphasizing the importance of a progressive trade approach that includes a more balanced approach to IP, Canada should not make the same mistake again. It should remain steadfast in supporting the revised TPP IP chapter as the preferred approach, which better reflects international standards and Canadian priorities.