A summary of the Intellectual Property section of the Trans Pacific Partnership TreatyNovember 7, 2015
The full text of the Trans-Pacific Partnership has been released, and there has been much discussion about it, some of it a bit misinformed. I decided to take a closer look at the chapter on Intellectual Property. It's an important chapter that governs trademarks, patents, copyrights, and their enforcement (including on the Internet). I am about as far as one can get from being an international trade lawyer, but I believe that I was able to make a reasonable assessment of the section. The language was sometimes difficult, but precise. Here is a summary:
This is a summary by a layman. It probably contains inaccuracies and ommissions.
18.1 - 7: Preamble
Each country may choose to enact stricter or looser laws, so long as they are consistent with the chapter. The chapter does not affect a country's right to protect public health, particularly to "promote access to medicines for all." The parties have also ratified or will ratify a bunch of other treaties, including the Berne convention (establishing Life + 50 years as the minimum copyright duration), Madrid protocol (enforcing trademarks), Budapest Treaty (patents), WPPT (digital locks), WIPO Copyright Treaty (copyright of computer programs) and a few others. Overall I believe these battles have been fought already and the TPP will entrench them further by making them tied to a whole bunch of trade reforms. But since I find it extremely unlikely that any party would withdraw from any of those treaties anyway, the point is sorta moot.
18.8 - National treatment
With a few caveats, people and companies of treaty partners are to be treated no worse than any other people.
18.9 - Transparency
IP laws must be made available online, including patent, trademark, etc. applications.
18.10-11 - Application to new and existing works
This chapter applies to works under copyright when the treaty comes into effect; it does not restore any copyrights which has expired.
18.12-17 - Cooperation
Countries should establish common systems for patent and trademark registration, as well as collaborate on other matters (diplomatic boilerplate). More boilerplate on public domain. "Traditional knowledge" should play nice with genetic patents.
18.18-27 - Trademarks
Trademarks can be sight, sound or smell (make a "best effort" on the last one). Trademarks must be protected internationally. Fair use exceptions may apply to trademarks. A "well-known" trademark need not be registered. Countries must provide a smooth system to register, oppose, cancel and appeal trademarks. Trademarks must be accessible in an electronic database. Trademarks are valid for at least 10 years, and can be renewed for the same period.
18.28 - Domain Names
Domain disputes (in the case of trademarks or squatting) must be resolved via the ICANN dispute resolution or similar practices. Domain name registrants must have contact information made available. This entrenches the existing WHOIS system, which should meet the requirements. Someone cannot profit, in bad faith, on the internet using a trademark domain not belonging to them.
18.29-36 - Geographical names
No one can misrepresent the country of origin of a good though naming. Geographical names may be protected by trademark. Such recognition may be challenged by people or companies from another country, for reasons such as confusion with an existing trademark, or that the geographical name has become customary. This section refers to product names with geographical names in it, like "Boston cream donut" or "Parmasean cheese". Some details on how those disputes and registrations should be resolved.
18.37-47 - Patents
Patents cover any invention that "is new, involves an inventive step and is capable of industrial application." Countries may exclude inventions that protect public policy or morality, including "serious prejudice to nature or the environment", "diagnostic, therapeutic and surgical methods", "animals other than microorganisms", and "plants". Some logistics concerning patents, their revocation on determination of invalidity, filing, amendments, publication (applications must be published), processing delays (patent duration extended by delay amount), etc. Countries may use patented inventions in a way that doesn't infringe on normal patent rights.
Novel agricultural chemicals that have been tested by a company and newly approved by a country may not be sold by another company for at least 10 years.
18.48-54 - Pharmaceutical products
If a company conducts testing for a drug or medicine, and get approval for it, they have exclusive right to use those test results to market their medication in a country for at least 5 years. New classes of drugs, called Biologics, get 8 years' exclusivity. A new pharmaceutical product means "a pharmaceutical product that does not contain a chemical entity that has been previously approved".
18.55-56 - Industrial designs
Each country shall "ensure adequate and effective protection of industrial designs".
18.57-62 - Copyrights
Basic rights for creators of works: exclusive reproduction, communication and distribution; artists control public broadcasting but not ones where listeners cannot control when they receive it (so not radio). Nothing new here, it seems.
18.63-64 - Copyright terms
Copyright shall be "not less than the life of the author and 70 years after the author's death," or for corporate works "not less than 70 years from the end of the calendar year of the first authorized publication", or if not published for 25 years after creation, then 70 years after creation. This will expand US and EU copyright duration to TPP countries. Berne convention still applies.
18.65-67 - More copyright, fair use
Countries may limit copyright so long as it doesn't interfere with "a normal exploitation of the work." Countries are encouraged to consider such limitations to copyright, including for "criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled." Corresponds nicely with fair use, which is defined similarly. Copyrights may be transferred.
18.68 - Technological Protection Measures / DRM
No one may willfully and knowingly "circumvent without authority any effective technological measure that controls access to a protected work", or make or sell any device or product that does so as its primary goal. Civil penalties (18.74) apply for non-commercial use, and criminal ones apply for breaking DRM for commercial gain. Libraries, broadcasters and other similar entities are exempt from criminal penalties. No country is required to impose liability for actions by third parties done without consent. In general, we cannot break digital locks blocking us from copying content.
Countries do not have to force device makers to comply with any DRM. If the DRM adversely affects non-infringing use, then countries may make exceptions to the rule against breaking DRM. In this case, rights holders must take "appropriate and effective measures" to ensure that limitations and exceptions to copyright can be enjoyed.
18.69 - Rights Management Information (RMI)
Metadata associated with identifying rights holders must not removed for the purposes of infringing copyright.
18.70 - Collective Management
18.71-77 - Enforcement
Countries must ensure that "procedures concerning the enforcement of intellectual property rights are fair and equitable". No obligation to make a separate police or judicial system for copyrights, patents, trademarks, etc. Statistics on enforcement must be made public.
A court must have the authority to award damages at least equal to the loss incurred by the rights holder (e.g. suggested retail price for copyrights, lost profits for trademarks). Additionally, courts must have the authority to award additional damages "to deter similar infringements in the future". Products or goods found in violation of IP law are to be destroyed. Confidential information revealed in court must be protected. Copyright holders may not abuse the court system; if they do, damages are to be awarded to defendants. No mention of extra-judicial proceedings or mass defendant lawsuits, so I don't see much a difference between this and what's currently present in Canada and the US.
Rights holders may apply to hold copyright, trademark or patent infringing goods at the border. Customs may stop goods that they suspect are infringing. "A Party may exclude from the application of this Article small quantities of goods of a non-commercial nature contained in travellers' personal luggage." A country can decide to let your personal pirated/fake stuff in
Infringement for commercial gain is a criminal offense. A court may seize infringing goods and materials used to create those goods. Move theatre recording is very illegal. Prison time is a possibility for commercial offenses.
18.78 - Trade secrets
The following are bad: hacking into a computer system to gain trade secrets, "the unauthorised and wilful misappropriation" or a trade secret, and "fraudulent disclosure" of a trade secret. Whether or not they are crimes are may be dependent on other factors, including financial gain, severity, spying, etc.
18.79 - Encrypted satellite signals
Encrypted satellite signals are protected; breaking them is a criminal offense.
18.80 - Government use
Governments themselves are subject to the same laws around IP for software.
18.81-82, Annex 18-E - Internet service providers
ISPs (including website hosts) get legal incentives to help rights holders take down infringing works. ISPs are exempt from any liability for their users violating copyright if they comply with a notice-and-takedown system; if they receive a notice that "has a sufficient indicia of reliability with respect to the authority of the person sending the notice", then they must "expeditiously remove or disable access to [the] material". If the ISP notifies the person whose stuff they took down, they are exempt from any liability for that removal action. If the person counter-notifies the ISP, then the ISP must restore the material. Misrepresentations are publishable with monetary damages.
Any such procedures for notice, takedown, and counter-notice should be established with both ISP and rights holder involvement.
"To avoid unwarranted market disruption in the online environment", the notice-and-takedown system will not be required if a country allows for liability for people providing a service that infringes copyright under certain circumstances; requires ISPs to forward notices of copyright infringement; and induces ISPs to remove material under court order. This section (Annex 18-E) appears to allow Canada's current "notice-and-notice" system.
18.83 - Final Provisions
The stuff in this chapter goes to effect at the same time. Countries may not make laws that circumvent or lessen the obligations in this chapter. A bunch of countries have extensions to various rules.
Please let me know if there are any errors or omissions.