On March 5, the Chilean Constitutional Court (CC) decided to review the constitutionality of the patent linkage bill currently being discussed in the Chilean Congress. This bill would set forth a non-merit based preliminary injunction only eligible for pharmaceutical patent holders.
Tobacco giant, Philip-Morris, brought actions this year under investor-State arbitration mechanisms in investment treaties to challenge laws limiting (in Uruguay) or prohibiting (in Australia) the display of its trademarks in tobacco packaging. This has caused the Australian government to take a strong stance against any investor-State arbitration provisions in free trade agreements (FTAs), including exemptions from the proposed investor-state settlement provisions of the Trans Pacific Partnership Agreement (TPP), currently being negotiated. However, a closer look reveals a broad collection of older treaties that do not contain exceptions in modern treaties that could have avoided this situation. As a multinational-enterprise, Philip-Morris has attempted to evade these exceptions by going through subsidiaries to bring claims under more favorable treaties. This reveals that Australia’s new stance against investor-State arbitration may do nothing to prevent similar claims being brought in the future.
The success of the Model Bilateral Investment Treaty (BIT) process in advancing transparency in the investment policy-making at the international level provides a practical and achievable framework for other areas on trade. Though far from perfect, the Model BIT has improved transparency for the highly controversial area of investment, while still allowing the US to successfully negotiate a multitude of BITs and investment chapters.
Because trade policies involving intellectual property rights (IPR) are also very controversial, the Model BIT framework could be used to create model IPR Agreements and chapters to increase the legitimacy of international policy making in this area.
On Tuesday, July 25, Chief TPP negotiator Barbara Weisel briefed civil society on the state of the negotiations. The briefing covered all areas of the negotiations (not just IPR). Weisel told the civil society audience that negotiators made progress in many areas at the San Diego round, but intellectual property and ecommerce were two areas where they “still have a way to go.”
In the coming months, trade officials will hold side meetings at the ASEAN conference, followed by the APEC conference. Also USTR’s intellectual property negotiators will travel to Malaysia and other countries to discuss intellectual property and health.
Yesterday, Mexico was invited to enter the TPP negotiations. According to the USTR press release: “The Administration will shortly notify Congress of its intent to include Mexico in the TPP negotiations. The notification will trigger a 90-day consultation period with Congress on U.S. negotiating objectives with respect to Mexico. USTR also will publish a notice in the Federal Register seeking public comments.”
Today, Canadian Prime Minister Harper announced that Canada will join the TPP negotiations as well, (see Reuters story). Harper said that “Opening new markets and creating new business opportunities leads to jobs, growth and long-term prosperity for all Canadians.”
This brief article will discuss the March 17, 2008 RIAA Suggestions for the Anti-Counterfeiting Trade Agreement (ACTA) and will pinpoint the Suggestions that did not make it into the final draft of ACTA, but are making a ‘come-back’ through the U.S.-proposed chapter on intellectual property of the Trans-Pacific Partnership Agreement (TPP). Although ACTA negotiations began in 2008, the first leaked draft was not available until March of 2010 and most of the subsequent drafts were also leaked, and not officially published. For the most part, the negotiating Parties, including the U.S. had “attempted to keep the ACTA negotiations in the proverbial ‘black box’.” Despite this utmost secrecy from the public, it seemed clear that a select batch of industry groups were heavily influencing the U.S.’s negotiation stance. One such group that seemed to have influenced the USTR is the Recording Industry Association of America (RIAA). On March 17, 2008, the RIAA submitted to the USTR a ‘wish-list’ of provisions that it wanted to be contained in ACTA. Shortly thereafter, the text of the RIAA submission was leaked and became available online.
Recently, Inside U.S. Trade reported that Australia, New Zealand and Singapore have proposed replacing some elements of the U.S. proposed TPP chapter on IP with provisions from ACTA. The table below compares the provisions from the two texts (as well as with TRIPS and the U.S.-Chile Free Trade Agreement). Overall, the comparative analysis shows that TPP contains a plethora of TRIPS-plus provisions as well as ACTA-plus and Chile FTA-plus provisions.
The chart is organized in the following order of categories: General Provisions; Scope; Special Measures Relating to Enforcement in the Digital Environment; Technological Protection Measures; Criminal Enforcement; Provisional Measures; Civil and Administrative Procedures and Remedies; Special Requirements Related to Border Enforcement; Rights Management Provisions.
This table is the product of work by multiple PIJIP fellows, including myself, Carrie Ellen Sager, and Sophia Castillo.
The 12th round of Trans Pacific Partnership talks are underway in Dallas. Negotiators are covering intellectual property topics including enforcement and patents. As reported by Inside U.S. Trade, New Zealand, Australia and Singapore have proposed replacing some elements of the US proposal on IP enforcement with ACTA language. The US proposal for IP enforcement in the TPP goes beyond ACTA in a number of ways. Under the US proposal, an infringement carried out without regard to financial gain may be still considered “commercial scale” – and therefore subject to criminal penalties. The US TPP proposals also requires penalties to be applied in certain cases where infringements are not carried out “willfully.” For a good analysis of the differences between TPP and ACTA, see former PIJIP fellow Carrie Sager’s table comparing the two).
Groups that work on intellectual property were behind roughly half of the tables at today’s tabling session at the TPP negotiations in Dallas. An incomplete list included PhRMA, the Biotechnology Industry Organization, the American Association of Publishers, the Business Software Alliance, the Property Rights Alliance, the Institute for Policy Innovation and the Chamber of Commerce… but also Public Citizen’s Access to Medicine Campaign, InternetNZ, the Library Copyright Alliance, Public Knowledge, and PIJIP.
Yesterday I gave a presentation on IPRs, technology and growth at the Dallas round of TPP negotiations. The following blog is based on my presentation. The slides I used are here.
Policymakers and US industry groups have been arguing that TRIPS-Plus intellectual property rights will drive growth and innovation in all of the countries involved in the TPP negotiations. They often refer to studies of how IPRs work in the U.S., and assume that IPRs will have the same effects in other countries. Of course, the U.S. has characteristics that are conductive to IPR-led growth, such as a large public R&D base and a competitive advantages in IP-intensive industries.
Abstract: This paper explores why the Office of the U.S. Trade Representative (USTR) seems so shocked by current demands for what seem like basic democratic elements of transparency and public involvement. I summarize the current state of the Anti-Counterfeiting Trade Agreement (ACTA) and what it contains. ACTA is part of a larger trend of international lawmaking in the United States, a shift from Article II treaties to executive agreements. ACTA is also part of a longstanding trend of coziness between industry groups and government representatives within IP policy-making. Trade negotiations made through the executive branch are particularly subject to industry capture, and that industry capture is particularly problematic when it is located in an agency of the government that does not envision itself as publicly accountable.
Stakeholder registering for the Dallas round of TPP negotiators have been informed that the conference style presentation format supported at all previous rounds has been disbanded and in place stakeholders will be given options of setting up “tables” to pass out information to browsing delegates.
Carol Guthrie, a public affairs official at USTR, explained in email correspondence: “The format for these more direct discussions will take the place of the conference-style format, to enable more valuable exchanges at this stage. The United States discussed this format with all our TPP counterparts, considering that at this stage in the talks, individual discussions with interested stakeholders rather than general presentations would yield more valuable input for negotiators.”