Earlier this week, USTR released the 2012 National Trade Estimate Report on Foreign Trade Barriers, which describes trade barriers in the EU, the Arab League, and 58 countries. The report includes “an inventory of the most important foreign barriers affecting U.S. exports of goods and services, foreign direct investment by U.S. persons, and protection of intellectual property rights.” It contains short chapters – usually under 10 pages, with less than one page on IP – on perceived trade barriers in each of the TPP negotiating countries. (It has similar chapters on countries that are implementing trade agreements, and on most of the countries with which it has engaged in IP trade disputes).
The report “is based upon information compiled within USTR, the Departments of Commerce and Agriculture, and other U.S. Government agencies, and supplemented with information provided in response to a notice published in the Federal Register, and by members of the private sector trade advisory committees and U.S. Embassies abroad.”
Below I’ve excepted the section on intellectual property for each of the TPP negotiating partners. In general, USTR describes elements of the framework for the protection of IP in each country, but alleges that the systems in place do not deter infringement.
Australia
Australia generally provides strong intellectual property rights (IPR) protection and enforcement through legislation that, among other things, criminalizes copyright piracy and trademark counterfeiting.
Under the AUSFTA, Australia must notify the holder of a pharmaceutical patent of a request for marketing approval by a third party for a product claimed by that patent. U.S. and Australian pharmaceutical companies have raised concerns that unnecessary delays in this notification process restrict their options for action against third parties that would infringe their patents if granted marketing approval by the Australian Therapeutic Goods Administration.
Australia was an active participant in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations and signed the ACTA in October 2011. The ACTA establishes an international framework that will assist Parties in their efforts to effectively combat the infringement of intellectual property rights (IPRs), in particular the proliferation of counterfeiting and piracy, which undermines legitimate trade and the sustainable development of the world economy.
Brunei
Brunei was listed on the Watch List in the 2011 Special 301 report, primarily because of the continued high rate of copyright piracy. Movie and software piracy is prevalent, and pirated optical discs and unlicensed software are openly sold in legitimate retail shops and department stores throughout Brunei. In August 2009, Brunei enforcement authorities undertook several raids in connection with a Recording Industry Malaysia music anti-piracy campaign. Although the raids had the immediate effect of temporarily reducing music piracy in Brunei, they do not appear to have had a long-term effect on piracy rates. In addition, there has been a long delay in the drafting of proposed amendments to Brunei’s copyright law that would provide police with ex officio authority to take action against pirated goods.
A positive development in 2011 was the Brunei government’s announcement that it intended to establish a Patents Registry Office, which was set up in January 2012 to promote and protect local innovation.
Chile
Chile was listed on the Priority Watch List in the 2011 Special 301 Report. The report notes the Piñera Administration’s significant commitment to address outstanding intellectual property rights (IPR) issues under the FTA. The report also highlights Chile’s implementation of new copyright legislation, ratification of the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellites (Brussels Convention), ratification of the Trademark Law Treaty (for which implementing legislation is pending), and the launch of a ministerial-level interagency committee on IPR with a mandate to examine the outstanding FTA issues. In 2011, the Chilean Senate approved the International Convention for the Protection of New Varieties of Plants. Implementing legislation is currently under consideration.
The United States has urged Chile to create a system to address patent issues expeditiously in connection with applications to market pharmaceutical products and to implement protections against the circumvention of technological protection measures. Chile should also provide adequate protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approvals for pharmaceutical products, amend its Internet service provider liability regime to permit effective action against any act of infringement of copyright and related rights, implement protections for encrypted program-carrying satellite signals, and to ensure that effective administrative and judicial procedures and deterrent remedies are made available to rights holders.
In 2012, the United States will continue to work with Chile to improve IPR enforcement and to ensure that Chile is meeting its FTA commitments.
Malaysia
Malaysia continues to demonstrate a commitment to protecting and enforcing intellectual property rights (IPR) and to pursuing needed legislative and regulatory improvements, and has made important progress with respect to the protection and enforcement of IPR in the past few years. In December 2011, the Malaysian Parliament passed amendments to the copyright law designed, among other things, to implement the WIPO Internet Treaties and prohibit unauthorized camcording of motion pictures in theaters. In addition, the Ministry of Domestic Trade, Cooperatives, and Consumerism (MDTCC) took steps to enhance Malaysia’s enforcement regime, including through active cooperation with rights holders on matters pertaining to IPR enforcement, ongoing training of prosecutors for specialized IPR courts, and the reestablishment of a Special Anti-Piracy Taskforce. In recent years, the MDTCC has also instructed its enforcement division to begin to take ex officio action, resulting in significant seizures of pirated products. In 2011, MDTCC launched its ‘Basket of Brands’ initiative, a voluntary program where participating trademark holders receive more proactive protection efforts in exchange for a commitment to testify in any resulting prosecutions.
Still, IPR concerns remain, and Malaysia remained on the Special 301 Watch List in 2011. The Special 301 report included reports of continued availability of pirated and counterfeit products in Malaysia. U.S. companies also report continued high rates of piracy over the Internet, although in June 2011 the Malaysian government took action to block access to several pirate websites. Book piracy also remains a problem. The United States has encouraged Malaysia to accede to the WIPO Internet Treaties and the Budapest Treaty. In addition, the United States has urged Malaysia to provide effective protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical products, and to provide an effective system to address patent issues expeditiously in connection with applications to market pharmaceutical products.
New Zealand
New Zealand generally provides for strong intellectual property rights (IPR) protection and enforcement. Recent developments include the introduction of the Patents Bill (to replace the Patents Act 1953). Although the draft bill will significantly help improve New Zealand’s patent system, the United Stateshas concerns over certain elements, including a clause providing that computer programs are excluded from patent eligibility. This clause departs from patent eligibility standards in other developed economies.
In addition, the proposed bill does not include other provisions that would bring New Zealand’s patent law into line with international best practices. For instance, the bill does not include provisions allowing for patent term restoration, which would enable rights holders to recoup the effective patent term lost due to delays in the marketing approval process. The absence of such a provision makes it more difficult for innovators to recoup their investments in developing products, such as medical products, that must complete a marketing approval process before they can be sold.
On April 14, 2011, the New Zealand Parliament passed the Copyright (Infringing File Sharing) Amendment Bill, which established a mechanism for New Zealand to fight online piracy. The legislation created a framework for a new regime designed to deter illegal file sharing. Although many rights holders were initially optimistic over the legislation, they have since expressed concerns that subsequent implementing regulations issued by the Ministry of Economic Development, which permit Internet service providers to charge up to NZ$25 ($21) per issuance of an infringement notice. The cost has deterred some rights holders from using the system.
The United States continues to encourage the New Zealand government to accede to and implement the World Intellectual Property Organization (WIPO) Performance and Phonograms Treaty and the WIPO Copyright Treaty. New Zealand was an active participant in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations, and signed the ACTA in October 2011. The ACTA establishes an international framework that will assist parties in their efforts to effectively combat the infringement of intellectual property rights, in particular the proliferation of counterfeiting and piracy, which undermines legitimate trade and the sustainable development of the world economy.
Peru
USTR listed Peru on its 2011 Special 301 Watch List. As a result of the PTPA, Peru enhanced its intellectual property rights (IPR) legal framework and continued to implement its National Strategic Plan to combat counterfeiting and piracy. Among other improvements, Peru continued to strengthen its IPR
enforcement efforts, including through significant raids and seizures at ports and well-known markets. Notwithstanding the improvements to Peru’s IPR legal regime, piracy and counterfeiting rates remain high. Inadequate resources for law enforcement and the need for improvements at Peru’s border and in its judicial system are evident. Piracy over the Internet is a growing problem, especially with respect to music. There is also a continuing need for measures to correct widespread government use of unlicensed software. A further concern is the lack of issuance of deterrent penalties in criminal IPR cases and against businesses found to have engaged in infringing activity. In addition, Peru needs to clarify its system for protecting against the unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval of agricultural chemical products. Peru must also clarify its protections for biotechnologically-derived pharmaceutical products, in accordance with provisions of the PTPA.
Singapore
In connection with its FTA commitments and obligations under international treaties and conventions, Singapore has developed a generally strong intellectual property rights (IPR) regime. Nevertheless, the United States continues to have concerns regarding the government’s IPR enforcement efforts. These concerns include the trans-shipment of infringing goods through Singapore, insufficient deterrent penalties for end-user software piracy, and the effectiveness of enforcement against online infringers.
Singapore is a signatory to the Anti-Counterfeiting Trade Agreement (ACTA), concluded in November 2010. The ACTA establishes an international framework that will assist Parties in their efforts to effectively combat the infringement of intellectual property rights, in particular the proliferation of counterfeiting and piracy, which undermines legitimate trade and the sustainable development of the world economy.
Vietnam
Vietnam maintained its position on the Watch List in the 2011 Special 301 report. While recognizing the strides Vietnam has made in intellectual property rights (IPR) protection and enforcement over the past several years, the United States noted that enforcement efforts have not kept pace with rising levels of IPR infringement and piracy in the country. Furthermore, administrative enforcement actions and penalties, the most commonly used means of enforcing IPR in Vietnam, have not served as a sufficient deterrent. Over the past year, Vietnamese agencies took some initial steps to enforce IPR protections on the Internet, including by issuing warning letters and by meeting with Internet service providers (ISPs) in response to rights holders’ requests to address infringing content. The United States continues to urge Vietnam to undertake more aggressive actions to combat the rising problem of intellectual property infringement, including piracy. The United States will continue to work with Vietnamese authorities and encourage more vigorous enforcement actions.
In 2009, Vietnam revised its intellectual property law, as well as IPR related provisions in the Criminal Code, to provide criminal penalties for IPR infringement conducted on a commercial scale. Vietnam has stated it will clarify the IPR related provisions in the Criminal Code through an implementing decree. The United States continues to monitor implementation of these important provisions. In September 2010, Vietnam issued a new decree on administrative penalties for industrial property violations.
