In an April 29, 2017 executive order, President Trump directed USTR and the Department of Commerce to submit within 180 days a report that reviews trade agreement performance, identifies trade abuses, and pursues trade remedies.
There is increasing attention in international trade and copyright forums to the question of how international law should protect and promote copyright user rights. I presented the following options at this year’s Creative Commons Global Summit as examples of provisions that (at least partially) promote the organization’s mission of promoting “nothing less than realizing the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.”
Existing models included in trade and other international agreements primarily serve two ends –
- protecting rights of countries to enact “fair use” rights, e.g. from the challenge that such exceptions could be held to violate the Berne “3-step test” as not being sufficiently tailored to “specific” cases, and
- affirmatively promoting user rights in copyrights systems, either through broad mandates to achieve “balance” or through mandatory exceptions for some categories of use.
The civil law tradition was one of the obstacles when civil societies and lawmakers tried to introduce flexible and open-ended fair use exceptions into the Korean Copyright Act (“KCA”) in 2005 and 2009. According to opposers, the fair use doctrine, developed under the rules of equity in common law countries such as the U.S., did not fit with the Korean civil law system.
This is a rare victory. The court has long been reluctant to raise hands of individuals having rights to know, especially when it comes to trade agreements. Back in 2007 when the KorUS FTA talk was close to a conclusion, the court decided in favor of the Korean government to keep confidential draft texts of the FTA. We have two additional court decisions rejecting the request for information disclosure of negotiating documents of KorUS FTA in 2008 and in 2009.
In January 21st 2016, the Korean Administrative Court in Seoul held, in favor of the plaintiff, the Lawyers for a Democracy Society , that the negotiating documents of the KorUS FTA be disclosed. Yet it is too early to expect that we may soon see the whole documents because the defendant (S. Korean Government) is very likely to appeal and the court ruling is confined to one specific paragraph in the preamble of the FTA.
The following is an excerpt from the executive summary of a forthcoming paper. The paper was written under an IISD project funded under the Knowledge Partnership Programme of DFID India and IPE Global Pvt Ltd. The views are strictly those of the authors.
The report addresses recent developments in the area of intellectual property rights (IPRs) since the adoption of the TRIPS Agreement (1994) with particular emphasis on trends in preferential trade agreements (PTAs) and plurilateral initiatives such as the Trans-Pacific Partnership Agreement (TPP), ACTA and the new agenda of the European Union (EU) on intellectual property.
[Cross posted from Heesob’s IP Blog, Link] One of the controversies in implementing the KorUS FTA is whether biological products are subject to the patent linkage obligation of the KorUS FTA. The debate was provoked by the Korean government’s proposal which applies the patent linkage to biologics. But it is unclear if the FTA text imposes such an obligation.
Chapter 18 (IPRs) has no definition of pharmaceutical products for the patent linkage, only the provision of patent term extention defining a “new pharmaceutical product” as “a product that at least contains a new chemical entity that has not been previously approved as a pharmaceutical product in the territory of the Party.” See Article 18.8:5 FN21. In contrast, Chapter 5 (Pharmaceuticals and Medical Devices) makes clear that “pharmaceutical product or medical device means a pharmaceutical, biologic, medical device, or diagnostic product.”
Brand name pharmaceutical companies are advocating for inclusion of disciplines on public pharmaceutical reimbursement programs in the ongoing negotiations of the Trans-Pacific Partnership agreement (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) trade agreements. This post answers some frequently asked questions by U.S. public health advocates about these proposals.
Why is pharmaceutical reimbursement policy being negotiated in trade agreements?
This morning, Sen. Orrin Hatch spoke about international intellectual property issues at the U.S. Chamber of Commerce. He was the keynote at the organization’s launch of the second edition of its Global Intellectual Property Index. A video of the event is here, and Sen. Hatch takes the podium at 9:45.
Sen. Hatch argued that American history has shown strong intellectual property (IP) leads to prosperity. Research has shown that increased IP leads all countries to enjoy greater foreign direct investment, technology transfer and innovation. However, the “lesson is lost” in the developing world where countries try to develop through “short cuts” that “undermine” and “steal” U.S. innovation. India is the biggest battlefront, and Indian compulsory licenses based on nonworking are a big problem. Hatch warned that nothing in India’s patent laws limit compulsory licenses to pharmaceuticals, and he warned that other fields of technology such as cell phones or jets could be subject to compulsory licenses too.
[Cross posted on Heesob’s IP Blog] The followings were demanded by the U.S. negotiators but eventually withdrawn during the negotiation of FTA with South Korea.
- Patent term extension due to an approval delay: The US demanded a patent term extension to compensate delay of a marketing approval process in “another” Party.
- Recognition of patent term extension: When a Party introduces a system in which a patent is registered on the basis of a substantial patent examination conducted by another Party, the extended patent term provided by the another Party is also recognized in the Party.
- Patentable subject matter: The US demanded to include “diagnostic, therapeutic, and surgical methods for the treatment of humans or animals for the subject matter of patent (See Article QQ.E.1:3(b) of the leaked TPP IP Chapter).
[Updated Dec 3, 2013]. USTR released a document describing several policy changes in its Trans Pacific Partnership trade agreement proposals on provisions related to the prices of medicines. It is not known whether these changes are related to public pressure that has been mounting on USTR after the leaks of its positions on Wikileaks last week. But there have been reports of increased concern being expressed on Capital Hill and to the White House about the lack of transparency in the negotiating process since the leaks, perhaps prompting this new step towards explaining some of its most controversial positions in public. This note provides some preliminary analysis of what we learn from this new statement.
A coalition of 22 trade groups have written a letter on the Trans Pacific Partnership to U.S. Trade Representative Ron Kirk that focuses mainly on services and investment. However, the letter also states that the TPP chapter on intellectual property “must, at a minimum, reflect the high standards achieved in recent free trade agreements (FTAs), such as the Korea-US FTA.” Organizations that signed the letter include the Business Software Alliance, the Motion Picture Association of America, the Software & Information Industry Association, TechAmerica, and the U.S. Chamber of Commerce.
MELBOURNE, AUSTRALIA. Negotiations of the Transpacific Partnership Agreement (TPP) have turned to discussions of the pharmaceutical reimbursement chapter today. This issue is highly controversial and represents a very recent shift in trade policy. There are only two previous free trade agreements with the US to include chapters restricting the operation of pharmaceutical reimbursement programs — the US-Korea FTA, including its side letter (KORUS) and the US-Australia FTA, including its side letter (AUSFTA).
The leaked text of the US proposal for a pharmaceutical “transparency” chapter shows that it is using the KORUS FTA as a template. And this, in turn, shows that its real intent is to control the efficacy of price restraints in public health programs, not to promote transparency within them. This is a bold and controversial proposal — particularly in an agreement including a large number of developing countries.