|TPP & Intellectual Property|
Intellectual Property and the Trans-Pacific Partnership
by Susy Frankel, Faculty of Law, Victoria University of Wellington
The current P4 Agreement has a fairly limited intellectual property chapter. The existing agreement is, however, in many ways a TRIPS- plus agreement. It requires that the parties provide for reproduction and communication rights for copyright owners and phonogram producers that are consistent with certain World Intellectual Property Organization (“WIPO”) treaties that came into force after the TRIPS Agreement did. These treaties are the WIPO Copyright Treaty (WCT) and the Performances and Phonograms Treaty (WPPT).which “update” copyright law for the digital era. P4 also expressly allows for certain intellectual property rights that the TRIPS Agreement is silent on. These include, for example, that parties may establish measures to protect traditional knowledge.
The expansion of P4 is likely to result in a much greater level of TRIPS–plus intellectual property protection.
From New Zealand’s perspective some of the increases in intellectual property protection are likely to be more problematic than others. Broadly, of concern is what New Zealand will concede, or be forced to concede, in the intellectual property field in order to make gains in other fields. In the short-term concessions in the intellectual property field can look palatable, but the social and economic impact of over-reaching intellectual property laws is too often underestimated.
Although the intellectual property chapter expands on this preamble, with a series of “intellectual property principles”, it reveals an undeveloped and under-analysed view about the role and function of intellectual property in trade. Primarily, it appears not to contemplate that trade in intellectual property occurs independently from goods and services as well as in connection with them. While intellectual property rights can foster creativity and innovation, P4 (like many international intellectual property agreements) has no internal mechanism to measure the appropriate level of protection to achieve the goals of the agreement. Rather, intellectual property protection without qualification, other than the general principles, is presumptively the starting point. If the only limits on protections are in general principles this tends towards the principles taking a back seat in interpretation.
1. Parallel importation of copyright products
P4 provides that the parties may “provide for international exhaustion of intellectual property rights.” NZ allows for the parallel importation of copyright goods and some trade marked goods. Singapore allows these sorts of parallel imports and also parallel imports of patented goods. US domestic and trade policy aims to prevent all parallel imports. Under AUSFTA patented products cannot be parallel imported. MED has indicated that NZ’s policy is that the current permissive parallel importing regime should not be pulled back in anyway.
2. Term of protection for copyright works
The US will wish to extend copyright term to life of the author plus 70 years or 70 from the making of the work. The current term in New Zealand, which is the TRIPS Agreement minimum term, is life of the author plus 50 years. The US/Chile FTA and AUSFTA have the 70 year term. In principle the 70 year term is too long, but what will the impact on NZ be if it extends term? As the term is already extended in the EU, US and Australia, New Zealand potentially gains little from not extending term. A potential gain, from having a shorter term, is that creators and businesses could use and reproduce copyright works, expired elsewhere, for use and sale in New Zealand and other markets with the 50 year term. Is there evidence of such uses and businesses developing in New Zealand? Maybe it is impractical for such businesses to be established?
3. Digital copyright issues
1. Expansion of patent law
2. Patent term for pharmaceuticals
Pharmaceuticals cannot be sold in NZ, and elsewhere, until they pass internal regulatory processes, primarily relating to safety. In both the US and Australia, when a patented pharmaceutical product is subject to a regulatory review process, the patentee can apply to extend the period of term of the patent. This extension period is designed to compensate for the period of time that the patented product could not be sold because it was subject to regulatory review. This phenomenon also occurs in the EU. The EU, US and Australia have different methods of calculating the extension of term. In New Zealand there is no extension of term for patents. Historically, some term extensions were granted in New Zealand, but this was under the law that had a shorter patent term than the now TRIPS mandated 20 year term. An MED discussion paper considered whether to allow extension of patent term under a 20 year patent term regime, but that paper appears to have been rejected by the last Labour cabinet.
3. Pharmaceutical cost
AUSFTA’s pharmaceutical marketing provisions can be used to extend patent term. The actual way in which this occurs is legally complex. (If not introduced directly through patent law it may be through a new attempt to establish the Australian New Zealand Therapeutic Products Authority, known as ANZTPA.) The extension of term results in increased prices.
C. Trade Marks and Geographical Indications
1. Expansion of the reach of trade mark
AUSFTA requires protection of sound and smell trade marks. New Zealand has this protection already. AUSFTA requires certain protection of domain names and dispute resolution processes. New Zealand law already has these standards.
2. Geographical indications
The US is a not a fan of geographical indications (“GIs”). Perhaps ironically, the US’s main argument against GIs is that they are protectionist rather than meeting the trade mark reputation based standard. The US has several disputes, including WTO disputes, with the EU over GI protection.
F. Treaty of Waitangi clause and traditional knowledge protection
G. Intellectual property enforcement
Enforcement issues of difficulty are likely to be quick remedies, such as copyright notice and takedown procedure or removal of internet access for repeat infringers.
 TRIPS- plus is the term commonly used to describe levels of intellectual property greater than those required under the WTO TRIPS Agreement.
 “of” does not appear in the text of the agreement.
 See Susy Frankel, “WTO’s Application of ‘the Customary Rules of Interpretation of Public International Law” to Intellectual Property” (2006) 45 Virginia Journal of international Law 365.
|Last Updated on Tuesday, 16 March 2010 10:04|