Countries negotiating the Trans-Pacific Partnership (TPP) have combined several proposals for an intellectual property rights (IPR) chapter into one single document, but participants are far from agreeing on fundamental IPR issues and this will clearly be one of the toughest areas in the negotiations to conclude, sources said.
TPP countries now have a single, consolidated text containing the positions of multiple countries that have tabled IPR proposals, although there are many brackets indicating areas of disagreement. Among the countries that have tabled text thus far are the United States, New Zealand, and Peru.
One source said that the differing views on IPR between TPP countries appear to be getting even more pronounced as developing countries take a stronger stance on their own IPR positions as a way to counter a U.S. proposal that many view as strongly on the side of intellectual property right holders.
This source said disagreement on the IPR chapter is likely to be one major reason why participants will not be able to reach the goal of completing negotiations by November of this year.
The United States did not table any additional IPR text during the most recent negotiating round in Singapore, which took place from March 28 to April 1, sources said.
The U.S. tabled a proposal earlier this year, but left out several critical pieces, including provisions that will determine patent rights for pharmaceuticals. It is also unclear whether the United States will pursue a system of secondary liability and whether there would be exceptions or “fair use” for copyrights, sources said.
IPR stakeholders were given an opportunity to present to negotiators on March 27, just before the TPP round in Singapore officially started. Presentations touched on subjects related to copyright and Internet issues as well as patents and the impact of IPR policy on pharmaceutical products.
Presentations on Internet issues were given by the Computer and Communications Industry Association (CCIA), the International Federation of Library Associations and Institutions and Google.
Other IPR presentations were given by representatives from the Pharmaceuticals Manufacturers Association (PhRMA), CropLife Asia, generic drug company Alphapharm, and the Center for the Governance of Knowledge and Development at the Australian National University.
The CCIA urged negotiators to enshrine mandatory IPR limitations in a TPP deal. This would include fair use limitations that allow the use of copyrighted material in certain cases such as reproduction for educational purposes, news reports or research.
Fair use would also provide protection from “unjustified copyright infringement liability for innovators in information technology and Internet industries,” according to the CCIA presentation.
The U.S.-South Korea free trade agreement allows each country to “adopt or maintain limitations or exceptions” through a footnote, but CCIA argues that a non-specific and permissive rule “will lead to a patchwork of inconsistent laws, which will not provide sufficient protections for Internet and technology enterprises.”
The organization also urged negotiators to include provisions that would protect Internet service providers (ISPs) and users from unjustified secondary liability. This would include “safe harbors” that would exempt online services, e-commerce platforms, device manufacturers and ISPs from being liable for the misconduct of users.
Source: Peter Maybarduk