Author: Burcu Kilic

A New Digital Trade Agenda: Are We Giving Away the Internet?

Burcu Kilic and Renata Avila. Cross posted from Open Democracy, Link (CC-BY-NC)  As we enter the uncertain Trump era with respect to trade policies, one can only guess that big trade players will come back to the multilateral fora, such as the World Trade Organization (WTO), as a reliable vehicle to foster their global trade agenda, especially as the free trade agreement (FTA) model fell apart after President Trump took office. Since the Trans-pacific Partnership (TPP) is dead, Transatlantic Trade and Investment Partnership (TTIP) and Trade in Services Agreement (TISA) are on hold, a return to the multilateral WTO offers the best chance of progress on e-commerce rules. E-commerce will be one of the key issues at this year’s WTO’s Ministerial Conference in Argentina, December 2017 (MC11). The Minister of Foreign Affairs of Argentina – host nation of the MC11 in December and G20 meeting in 2018 – has described e-commerce as “an essential part of the future of global trade, to bridge the inequality gap, improve gender equality” and “leapfrog into the twenty first century”. He has urged member states to renew their commitment and mandate to work on e-commerce. In fact, the US and other major developed countries have been promoting the e-commerce agenda since July 2016, by effectively dictating the terms and asking WTO members to remove any so-called regulatory barriers in the global e-commerce market....

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Public Citizen-CIPPIC Analysis of the Trans Pacific Partnership e-Commerce Chapter

[Burcu Kilic and Tamir Israel] For those catching up on the Trans-Pacific Partnership (TPP) text, here is the analysis of the e-commerce chapter we sent around. It is a joint publication of Public Citizen and Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa Faculty of Law. The chapter sets rules that, if ratified, will shape the development of the digital economy for years to come. The clauses highlight the importance of e-commerce and of eliminating trade restrictions by expanding the legal use of e-commerce platforms, paperless trade administration, protecting users from abuse and damages, and removing ‘non-tariff barriers’. The chapter includes rules and procedures for trade in goods and services conveyed by the Internet and other electronic means, and addresses a range of issues including: No-discrimination policy for digital goods The first-ever trade obligation on cross-border transfer of data. The provision includes a difficult to use and insufficient exception for public policy measures (such as data protection). The exception language has many layers of qualifications, which are similar to the general exceptions adopted in Article XIV of the General Agreement on Trade in Services (GATS) and Article XX of the General Agreement on Trade and Tariffs (GATT). In only one of  44 cases ( 43 GATT & 1 GATS ), were all conditions for application of a GATT or GATS general exception deemed satisfied....

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Freeing Trade at the Expense of Local Crop Markets? A Look at the TPP’s New Plant-Related IP Rights from a Human Rights Perspective

Below is the introduction of an article written with Hannah Brennan and published April 10 by the Harvard Human Rights Journal. The full article is here.  On October 16, 2014, a new draft of the intellectual property chapter of the Trans-Pacific Partnership (TPP) was leaked. The TPP is a free trade agreement currently being negotiated in secret between the governments of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam. The intellectual property chapter released in October contains a plant-related intellectual property provision proposed by the United States and Japan that could pose a serious threat to food security within the lower-income parties to the TPP. Intellectual property rights (IPRs) on plants endow plant breeders and seed manufacturers with varying degrees of control over the propagating materials (seeds, tissue cultures, cuttings) and sometimes harvested materials (fruits, foliage, flowers) of any new plant variety they create. The newly released chapter reveals that the TPP will require signatories to make patents on plants or plant-related inventions available as well as accede to the 1991 version of the International Convention for the Protection of New Varieties of Plants (1991 UPOV). Currently, most nations, including the majority of parties negotiating the TPP, set their own plant protection policies without interference from international authorities. Most nations have not acceded to the 1991 UPOV, and only a handful...

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What Is Patentable Under the Trans-Pacific Partnership?

Below is the abstract from the full paper, coauthored with Hannah Brennan and Peter Maybarduk, which was published last week in the Yale Journal of International Law.  The full paper is here. On October 16, 2014, WikiLeaks released a complete draft of the Intellectual Property Chapter of the proposed Trans-Pacific Partnership Agreement (TPP). The TPP is a controversial free trade agreement being negotiated behind closed doors by officials from Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam. The United States’ most recent proposals for the TPP’s intellectual property chapter would require the majority of the negotiating parties to significantly alter the scope of their intellectual property laws—changes that would raise drug and crop costs, therein restricting access to affordable medicines and foodstuffs. For those nations that have already aligned their domestic laws with the TPP’s intellectual property provisions, this agreement would further ossify detrimental standards. This feature examines one piece of the TPP’s intellectual property chapter: the text’s provisions on patentability requirements. We argue that the patentability requirements set forth in the TPP could seriously harm public health and local farming practices in the negotiating countries....

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Call for Papers – Special Issue of the African Journal for Science, Technology, Innovation and Development

We invite participants of the combined 3rd Global Congress on IP and the Public Interest and Open A.I.R. Conference on Innovation and IP in Africa to submit their papers for a special issue of the African Journal for Science, Technology, Innovation and Development. The best papers presented and submitted at the Open A.I.R. Conference and Global Congress will be reviewed, and may be selected for publication. The AJSTID (http://www.ajstid.com) is an interdisciplinary and refereed international journal on science, technology, innovation and development in Africa and other low-income countries. It has been established to highlight the crucial role of science, technology and innovation for development and to promote research on the contribution of knowledge creation and diffusion to development in Africa. This issue will explore research questions at the nexus of intellectual property and development, an intriguing and significant research domain that offers numerous opportunities for substantial scholarly inquiry. It is widely accepted that IP regimes should be considered as forming part of a broader set of measures that are designed to optimize the development and utilization of knowledge. The intent of this special issue is to provide a forum to advance our understanding of the research issues that lie at this nexus. The purpose of this issue is to contribute to the development of intellectual property (IP) policy in Africa and to present crucial findings from innovation research related...

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The Question of Patent Eligible Subject Matter and Evergreening Practices

[Burcu Kilic and Luigi Palombi]  Over the past few years, patent-eligible subject matter has become one of the hotly debated areas of patent law in several countries. Even in the U.S., the Supreme Court is beginning to express concerns about overly inclusive patent rules that stifle both competition and follow-on innovation.  However, significant confusion persists over the difference between patent eligible subject matter and patentability requirements. Patent eligibility tests have proven quite difficult to apply, often leading to inconsistent and unpredictable results. An inquiry into the patent examination begins with determining whether a claim is eligible for patenting and falls into one or more categories listed under patent eligible subject matter. The term patent eligibility denotes limitations on the categories of subject matter that may be considered for patent protection. This inquiry is different from and always precedes the question of whether the subject matter meets the patentability criteria of novelty, industrial application and inventive step. In U.S. patent law, patent eligible subject matter is governed by Section 101 (as opposed to Sections 102 and 103, which cover the patentability requirements of novelty and non-obviousness) and, as further defined by the courts, excludes abstract ideas, laws of nature and natural phenomena. However, in some jurisdictions (e.g., India), patent eligible subject matter may exclude certain trivial innovations from the broad category of ‘inventions’. Patent eligible subject matter is governed by...

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