Public interest advocates and analysts have long been critical of the “maximalist” intellectual property agenda of some wealthy countries. But there is also a counter-current in the public interest community that is advocating for new positive norms to promote precisely the values that appear lacking from the maximalist agenda. This positive agenda promotes greater transparency and participation in norm setting, and endorses a set of substantive rules that seeks to maximize local policy space to promote innovation and access to needed goods (including, e.g. educational materials, information and medical products) while ensuring that intellectual property protections and enforcement practices safeguard a broader set of human rights and social and economic values. As the next round of the Trans-Pacific Partnership Agreement gets underway in Melbourne the first week in March, it is a good time to ask what the agreement might look like if it took the promotion of a positive agenda as its starting point.

This note describes some provisions of domestic and international law that have been more supportive of positive agenda norms. This is not a policy platform endorsed by any specific set of organizations, although most of the ideas expressed here originate from others. Nor is this a compilation of all the provisions that might be included in an agreement based on a positive agenda. The construction of a full positive agenda would require a positive process — an open and transparent norm setting process that would welcome and solicit the input of public interest organizations, academics and a full range of public and private stakeholders. For a set of principles that might guide such a fuller agenda, see the Washington Declaration on Intellectual Property and the Public Interest, crafted by over 200 intellectual property experts, academics and public interest advocates from over 35 countries in August 2011, and the Civil Society Platform on Trade Related Intellectual Property Rights.

This is an ongoing project and will updated periodically. Comments are welcome.

Promotion of Multilateral Forums for the Creation of Global Norms

  • Restrict the scope of the intellectual property chapter to cooperation in implementing existing international intellectual property standards enshrined in multilateral agreements such as TRIPS.
    • E.g. “International intellectual property policy affects a broad range of interests within society, not just those of rights holders. Thus, intellectual property policy making should be conducted through mechanisms of transparency and openness that encourage broad public participation. New rules should be made within the existing forums responsible for intellectual property policy, where both developed and developing countries have full representation, and where the texts of and forums for considering proposals are open. All new international intellectual property standards must be subject to democratic checks and balances, including domestic legislative approval and opportunities for judicial review.” Washington Declaration on Intellectual Property and the Public Interest.



  • TPP negotiations should immediately release the consolidated text being negotiated and regularly release the operative text before every round of negotiations.


Require balance and transparency in trade advising bodies

  • Any private sector advisory committee on treaty promulgation, interpretation, and enforcement should be required to operate by open meeting and public document terms equivalent to the U.S. Federal Advisory Committee Act (FACA), without resort to exceptions for reviews of classified documents.
    • E.g. FACA requires that advisory committees must
      • be “fairly balanced in terms of the points of view represented and the functions to be performed.”
      • publish adequate advance notice of meetings and hold them open to the general public;
      • make available for public inspection, subject to the freedom of information laws, all papers and records exchanged between committee members or between members and governments;
      • not be given access to classified information or otherwise be conducted so as to avoid the above requirements.


Ban on unilateral threats and enforcement

  • All enforcement processes should respect multilateral and bilateral dispute procedures. International agreements should ban the use of any “watch list” or other unilateral administrative adjudication of compliance with any trade agreement or policy.
    • See WTO Dispute Resolution Understanding Art. 23, requiring that Members shall “not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding”
    • See Civil Society Platform on Trade Related Intellectual Property Rights (Calling on trade policy to “Forbid the use of threats and punitive actions, such as listing in the Special 301 Watch List and/or withdrawal of Generalized System of Preferences benefits, in response to a country’s use of TRIPS safeguards and flexibilities or refusal to adopt TRIPS-plus measures.”)


Copyright in the Digital Environment

  • Promote “notice and notice” systems for limiting ISP liability that do not rely on censorship of online material without a court order.
    • E.g. Canada Copyright Modernization Act, Bill C-11, 41st Parliament § 47  provides that an ISP “who receives a notice of claimed infringement . . . shall, on being paid any fee that the person has lawfully charged for doing so, (a) without delay forward the notice electronically to the person” identified by the notice.
  • Require open ended, flexible exceptions that can adapt to technology and use changes.
    • E.g. the Washington Declaration called for “efforts to defend and expand as appropriate the operation of limitations and exceptions in the years to come,” including “efforts to assure that international law is interpreted in ways that give States the greatest possible flexibility in adopting limitations and exceptions,” “Support the development of binding international agreements providing for mandatory minimum limitations and exceptions,” “Promote discussion of employing ‘open-ended’ limitations in national copyright legislation.”
  • Require countries that penalize circumvention of technological protection measures to offer flexible and open ended limitations and exceptions to liability to safeguard freedom of expression, access for the disabled and emerging conception of the public interest.
    • E.g. The U.S. DMCA, 17 U.S.C. 1201(a), provides for the creation of exemptions for classes of activities that would be “adversely affected by the prohibition . . . in their ability to make noninfringing uses under this title of a particular class of copyrighted works.” (see regulatory exemptions at 37 C.F.R. § 201.40 (2010), and the list of currently proposed exemptions.
    • E.g. Canada C-11 sec. 41.21(a) permits the government to prescribe “additional circumstances in which” TPM paragraph 41.1(1)(a) does not apply, having regard to a set of open ended factors.
  • Require exceptions to copyright for non-commercial user-generated content.
    • E.g. Canada Bill C-11 §22 creating 29.21 provides that it is “not an infringement of copyright for an individual to use an existing work . . . in the creation of a new work . . . or to authorize an intermediary to disseminate it, if . . . the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes” and other factors, such as attribution, are met.
  • Require exceptions to copyright for temporary reproductions for technological purposes (e.g. cache and RAM copies on internet).
    • E.g. Canada Bill C-11 § 32, creating a new § 30.71, providing that it “is not an infringement of copyright to make a reproduction of a work or other subject-matter if (a) the reproduction forms an essential part of a technological process; (b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and (c) the reproduction exists only for the duration of the technological process.”
  • Allow cross border sharing of copyrighted works created under an exception for visually impaired


Remedies and Enforcement

  • Provisions on remedies and enforcement should be “reasonable and proportional to the acts of infringement they target,” “not include restrictions on access to essential goods and services, including access to the Internet or to needed medicines and learning materials,” and “avoid excessively punitive approaches to enforcement, such as disproportionate statutory damages; undue expansion of criminal and third party liability; and dramatic increases in authority to enjoin, seize and destroy goods without adequate procedural safeguards.” Washington Declaration on Intellectual Property and the Public Interest.
    • e.g. Require a commercial threshold for the imposition of statutory damages. See Canada Bill C-11 § 46(1), introducing a new § 38.1(1)), limiting statutory damages to “a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes.”
    • e.g. Adopt safeguards on internet enforcement policies modeled on the White House statement opposing on SOPA, including:

-Any enforcement of copyright on the internet must be narrowly targeted to cover activity clearly prohibited under existing laws, provide strong due process and be focused on criminal activity.

-Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.

-Laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security.


Privacy/ISP monitoring

  • Enforcement measures in the digital environment must prioritize privacy concerns by requiring strong due process protections and judicial oversight for measures that identify specific users and by limiting “the duties, rights, or abilities of Internet service providers to monitor or control the communications of their users based on the content of these communications.” Washington Declaration on Intellectual Property and the Public Interest
    • e.g Require demonstration of sufficiency of evidence before any disclosure of internet user information. This could include a codification of U.S. case law requiring:

    1)     reasonable efforts to notify the accused Internet user of the pendency of the identification proceeding and explain how to present a defense;

    2)     identification of the exact actions of each user that constitute an actionable cause;

    3)     allegation of all elements of the cause of action and prima facie evidence for each Doe defendant sufficient to survive a motion for summary judgment; and

    4)     a court judgment authorizing the disclosure based on a “balance [of] the defendant’s … right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.”

    Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. App. 2001) (EFF Summary)


    Protection of Parallel Trade

    • International law should continue to affirmatively protect the ability of countries to authorize parallel imports according to their own domestic policies.
    • E.g. Paragraph 5(d) of the Doha Declaration on TRIPS and Public Health, recognizing that “(d) The effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual property rights is to leave each Member free to establish its own regime for such exhaustion”
    • E.g. Peru-EU Art. 200 (“Each Party shall be free to establish its own regime for exhaustion of intellectual property rights, subject to the provisions of the TRIPS Agreement.”).


    Prohibition on extraterritorial application

    • International agreements should ban the extraterritorial application of domestic IP standards to interrupt flows of goods or information, including through in-transit seizures of goods that do not violate the IP laws of the importing or exporting countries, or through DNS blocking proposals that would effectively censure information from users in third countries.


    Promotion and protection of Human Rights

    • Include endorsements of the international right to health and to freedom of opinion and expression as affirmative limitations on all provisions within the IP chapter.
      • E.g. Right to health restrictions on data exclusivity, linkage and other TRIPS+ intellectual property policies. Report of the Special Rapporteur on the Right to Health, Anand Grover, The Right to Health and Access to Medicines (2009)
      • E.g. Freedom of opinion and expression restrictions on arbitrary blocking or filtering of content, criminalization of legitimate expression, intermediary and speech-platform liability, disconnecting users from Internet access, and protection and enforcement of intellectual property rights law. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue
      • Peru-EU FTA Art. 106(1), & 167(1) “nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Party of measures: (a) necessary to protect public morals or to maintain public order; (b) necessary to protect human, animal or plant life or health, including those environmental measures necessary to this effect”)
      • Art. 196 “The Parties recognise the need to maintain a balance between the rights of intellectual property holders and the interest of the public, particularly regarding education, culture, research, public health, food security, environment, access to information and technology transfer.”


    Protection of Biological Diversity and Traditional knowledge

    • E.g. Peru-EU FTA Art 201(1-8) affirming “rights and obligations under the Convention on Biological Diversity” and “associated traditional knowledge, innovations and practices of indigenous and local communities.”


    Research and Development

    • Promote public benefits from publicly funded research, including by promoting accessibility, availability, affordability and access to data and information from government funded research.


    Access to Medicines

    • Fully incorporate Doha Declaration Para 4 right to use TRIPS flexibilities “to the full,” including as a substantive limitation on the application of the IP chapter.
    • Affirm that nothing in the agreement regulates the operation of a non-discriminatory pharmaceutical reimbursement program or other regulation that may affect the prices demanded by the sellers of patented medicines.
    • Affirm that the Doha Agreement’s affirmation of the right to use all flexibilities to promote access to medicines for all includes the right of each country to reject patent term extensions, data exclusivity and patent/registration linkage while providing pre-grant oppositions and heightened patentability standards.
    • Incorporate language from the high level UN meeting on non-communicable diseases, making clear that Doha Declaration principles and flexibilities are not restricted to communicable diseases.
    • Incorporate interpretive cannon to promote Doha Declaration.
      • E.g EU-Peru Art. 197 (“in interpreting and implementing the rights and obligations under this Title, the Parties shall ensure consistency with this Declaration.
    • Acknowledge that domestic flexibility to define patentability standards leaves countries free to define an invention so as to exclude “the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.” India Patent Act Sec. 3(d).
    • Adopt affirmative authorization to export medical devices and medicines produced under compulsory license without violating TRIPS art. 31(f).
      • E.g. letter from the U.S. to Canada on July 16, 2004 (agreeing that NAFTA permits: “Where a compulsory license is granted by a Party in accordance with such terms, the Parties agree that, as between themselves, adequate remuneration pursuant to Article 1709(10)(h) of the NAFTA will be paid in the exporting Party taking into account the economic value to the importing country of the use that has been authorized in the exporting Party.”)

    Data Protection

    • Affirm that no country need go beyond the requirements of TRIPS Art. 39.3 in protecting data from unfair commercial uses, that such protection need not include data exclusivity-based monopoly protections, and that public interest exceptions may be granted for any system of protection.

    Pharmaceutical Reimbursement


    Tobacco and health regulation

    • Ensure that tobacco regulations and other health policies (e.g. medicine price controls) do not become subject to challenge under IP chapter.
      • E.g. “Notwithstanding any language to the contrary, nothing in this agreement shall block, impede, restrict, or modify the ability of any party to take or maintain any action to promote public health, including measures related to the regulation of the sale or marketing of manufactured tobacco products, pharmaceuticals or other products that affect the public’s health.”
      • Exclude tobacco products from all trade rules and in each relevant Schedule and Annex, including but not limited to Market Access, Most Favored Nation, National Treatment, Services, Intellectual Property, and tariff reduction schedules. In the alternative, include provision that the Framework Convention on Tobacco Control shall govern, in the event of any conflict with this Agreement.
      • See CPATH, Toward a Healthy Trade Agreement
      • Cf. San Francisco Board of Supervisors Resolution on TPP and Tobacco (“urges our trade leaders to change course to protect our health by excluding tobacco and tobacco products from the Trans-Pacific Partnership Agreement and from all future trade agreements”)
      • Cf EU-Peru FTA (“Having regard for the provisions of this Title, each Party may, in formulating or amending its laws and regulations, make use of the exceptions and flexibilities permitted by the multilateral intellectual property agreements, particularly when adopting measures necessary to protect public health and nutrition, and to guarantee access to medicines.”)


    Sovereignty and Ban on Investor-State Disputes

    • Affirm that nothing in the agreement empowers “businesses from one country to take international legal action against the government of another country for alleged breaches of the agreement, such as for policies that allegedly discriminate against those businesses and in favour of the country’s domestic businesses.” Australia Government Trade Policy Statement.