A draft report by the Australian Productivity Commission (APC) concludes that the current copyright law fails to properly balance the interests of copyright holders and users. It warns that “Australia’s copyright arrangements are weighed too heavily in favour of copyright owners, to the detriment of the long-term interests of both consumers and intermediate users.” The APC makes recommends changes to the law to address the imbalance, including “the introduction of a broad, principles-based fair use exception.” This follows the 2013 Australian Law Reform Commission report on Copyright in the Digital Economy, which also recommended that Australia amend its copyright law to include fair use.
Last week, the U.S. Trade Representative (USTR) released the 2016 Special 301 Report. The report satisfies the longstanding legislative requirement that it identify “those foreign countries that deny adequate and effective protection of intellectual property rights (IPR), or deny fair and equitable market access to United States persons that rely upon intellectual property protection.” Countries are either identified as a Priority Foreign Country (which triggers a process that can lead to sanctions) or placed on the Priority Watch List or the Watch List.
The World Trade Organization prohibits Members from unilaterally sanctioning each other, so it has become rare for a country to be included as a Priority Foreign Country. However, this year a new law requires USTR to develop “action plans” with countries on the Priority Watch List and allows “appropriate actions” if the U.S. is unsatisfied with its trading partners’ progress on these plans.
Knowledge Ecology International (KEI) has leaked draft texts of the Regional Comprehensive Economic Partnership (RCEP) chapters on intellectual property and investment. The drafts are dated October 2015. RCEP is a large trade deal being negotiated by the ASEAN nations (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand, Vietnam) and their current FTA partners (Australia, China, India, Japan, South Korea and New Zealand). Negotiations are happening this week in Perth, Australia.
Though RCEP is sometimes presented as a sort of non-U.S.-influenced alternative to the Trans Pacific Partnership, many of the same types of provisions are found in the IP and investment chapters.
The Pennsylvania Fair Trade Coalition (PFTC) has released questionnaires completed by candidates Sanders and Clinton on their views on the Trans Pacific Partnership. The questionnaires consist of ten questions and allow the candidates to give detailed answers. Topics include intellectual property and medicines, labor, environment, and fast track. Both candidates’ fully completed questionnaires are available in the PFTC press release. Question 4, on intellectual property and access to medicine, and each candidates’ full answer, are reproduced below:
The Office of the U.S. Trade Representative (USTR) has announced a “work plan” with Honduras to strengthen IP enforcement there. According to a USTR press release, Honduras will “substantially increase the number of prosecutors specializing in criminal IPR enforcement by the end of this March. The GOH has also committed to publish quarterly reports on prosecution case activity, in order to promote transparency and accountability as this plan is implemented. Additionally, the Work Plan addresses signal piracy in cable and satellite transmissions. Prosecutors will work to efficiently resolve pending criminal investigations associated with this problem and GOH authorities will engage with rights holders to promote expanded use of administrative enforcement options. The GOH’s cable regulatory authorities have committed to accept right holder identification of authorized cable licensees, and to take appropriate administrative enforcement actions, including the imposition of fines and suspension of business licenses in appropriate cases. These regulatory authorities also committed to publish quarterly reports on administrative enforcement activity.” The work plan also addresses concerns over the scope of geographical indications.
Last week, President Obama signed the Trade Enforcement and Trade Facilitation Act of 2015 into law. It made news primarily due to the provisions allowing Customs to block entry of goods made by slave labor, but readers of this blog might also be interested in the section on trademark and copyright enforcement. The bill requires customs officers to share information with rightholders upon suspicion that an import is infringing, it allows the seizure of anti-circumvention tools, and it sets up a new IPR “Coordination Center” within Immigration and Customs Enforcement. There are also coordination, reporting and training requirements.
European Commission Vice President Andrus Ansip has responded to Members of the European Parliament who expressed concern with the Commission’s consideration of ancillary copyright for press publishers as part of its upcoming copyright harmonization proposal. The so-called “Google tax”would allow press publishers to charge fees to search engines that include snippets of news stories in their search results. Vice President Ansip indicated that the Commission is undecided on whether to include the provision:
As readers of this blog are well aware, one of the most controversial issues in the Trans Pacific Partnership was the length of data exclusivity for biologic drugs. The U.S. sought a twelve year period (which would be consistent with current U.S. law) during which competitors would be unable to enter the market to compete with innovator firms unless they duplicated safety and efficacy data to obtain regulatory approval. Other countries sought lesser terms, arguing that long periods of data exclusivity raised the price of biologic medicines by blocking generic competition.
Officials from the U.S. Trade Representative’s office have been signaling to businesses unhappy with the deal finalized last year that they may win extra concessions from TPP partner countries through the implementation process.
Politico reports that U.S. Trade Representative Michael Froman “is sending the message that he’s listening to calls from business groups and some members of Congress to address their complaints with TPP through the way it is implemented, as well as other avenues.
A group of 1,525 civil society groups have signed onto a letter sponsored by the Citizen’s Trade Campaign urging Members of Congress to “to oppose the Trans-Pacific Partnership (TPP), a binding pact that poses significant threats to American jobs and wages, the environment, food safety and public health, and that falls far short of establishing the high standards the United States should require in a 21st Century trade agreement.” The full letter is available here. The section describing the intellectual property chapter’s threats to public health are below:
The Office of the U.S. Trade Representative (USTR) has requested comments for the Special 301 Report, which identifies countries that “deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.” It will also hold a public hearing for further input. The report is produced via an interagency process led by USTR, during which the Special 301 Subcommittee of the Trade Policy Staff Committee reviews information from “many” sources, including submitted comments and public testimony, and recommends placement of countries in the report.
India has released its new model Bilateral Investment Treaty (BIT). Its definition of an investment includes ” Copyrights, know-how and intellectual property rights such as patents, trademarks, industrial designs and trade names, to the extent they are recognized under the law of a Party.” (Art 1.4.f).
It contains a carve-out for TRIPS flexibilities that is similar to language found in the U.S. BIT: “This Treaty shall not apply to: