TPP leak: a peep at the General Provisions

Not so secret.  Our first assessment of the Wikileaked text of the Trans-Pacific Partnership covered copyright.  Now the IPKat is pleased to welcome another guest, Alberto Bellan, who will be covering two aspects of the TPP for this weblog.  The first, here, is the agreement's General Provisions.  The second, which will be posted in the next day or so, will cover trade marks.  Alberto, by the way is not just a Katfriend: he is a Ph.D. student at the University of Milan [why do so many Italians make good bloggers, Merpel wonders?]. If you want to know more about Alberto, he has no secrets since he can be found both on LinkedIn and on Twitter, at @albertobellan.

Secret? What secret? 

It is no big secret that a huge war of interests has been going on globally on IP issues. The leaked Chapter diffused last week by Wikileaks exposes both the names of the soldiers and the battles they are currently fighting.

The Chapter starts with "General Provisions", the negotiation phase for which is quite helpful if we want to understand the major philosophical topics discussed among the parties. It also contains interesting innovations with regard to previous international treaties. 

The first funny thing is that the parties do not really agree on the meaning of "intellectual property" to be regulated by the Chapter. Indeed, According to Art. QQ.A.1, the Chapter could "refer to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement". Beyond the classical IPRs (trade marks, geographical indications, patents, design, copyright and related rights -there's unanimity on this), why not include plants varieties? (this is a question that Australia and Peru asked).

The negotiations over the Articles governing the "Objective" and "Principles" sound like a repeat of discussions preceding the TRIPS agreement.  Very general objectives and principles such as 

"enhancing the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the … transfer and dissemination of technology and trade" 

are listed there (Art. QQ.A.2), along with other provisions seeking a fair balance between IP and other public interests or the actual economic situation of parties (TRIPS, remember?), like the one according to which one objective of the Chapter should be to 

"reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights", but "taking into account the different levels of economic development and capacity as well as differences in national legal systems" (Art. QQ.A.2) 

and the one which reads that nothing in the Chapter 

“shall prevent a Party from adopting appropriate measures to prevent: (a) the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology” (Art. QQ.A.9) 

US and Japan oppose to both these Articles. 

Not surprisingly, public health appears to be a major issue among the parties. Art. QQ.A.5, entitled "Understandings Regarding Certain Public Health Measures", e.g., reads that  

"The Parties have reached the following understandings regarding this Chapter … The obligations of this Chapter do not and should not prevent a Party from taking measures to protect public health by promoting access to medicines for all, in particular concerning cases such as HIV/AIDS, tuberculosis, malaria …"  

US, however, oppose and Japan "is reflecting further on this paragraph" -- the understanding is not actually reached, though.  All the parties appear to agree that everybody should “affirm their commitment to the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2)” (Art. QQ.A.4). 

In general, this Chapter could be for TRIPS and for other minor international conventions what TRIPS has been for the Berne and Paris Conventions in the good old days. 

Art. QQ.A.6 lays down, with wording still to be defined, that the parties should declare eternal loyalty to TRIPS and "affirm their existing rights and obligations with respect to each other under the TRIPS Agreement" and, possibly, to "any other multilateral agreements relating to intellectual property to which they are party". Moreover, US and Australia would also like all the parties to "ratify or accede to … by the date of entry into force of this Agreement" a number of less famous international IP conventions, such as the Singapore Treaty on the Law of Trademarks (2006), the WIPOCopyright Treaty (1996), the WIPO Performances and Phonograms Treaty and UPOV. Berne, Paris and the Patent Cooperation Treaty are of course also listed. 

Like TRIPS, the Chapter declares itself to be a minimum standard setter (Art.  QQ.A.3). National and Most-Favoured-Nation Treatment principles are also laid down (Articles QQ.A.7 and QQ.A.8). 

The debate around subject matter which fell into the public domain before the implementation of the TTP Agreement and which could be re-monopolisable according to the TTP is intriguing. Currently, Art. 70(3) of TRIPS states: 

“There shall be no obligation to restore protection to subject matter which on the date of application of this Agreement for the Member in question has fallen into the public domain”. 

While some Countries would like this provision to be included as such in the Chapter (see Art. QQ.A.11, para 2), the US proposes a potentially innovative rule, according to which 

“this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter” (Art. QQ.A.11, para 1, with emphasis added). 

Could dead monopolies be resuscitated thanks to the TTP’s power? It has happened already, here in the EU (most recently in the case of copyright protection over design products in some jurisdictions not providing for it at the time of the Design Directive). 

An interesting debate is on-going about exhaustion. Trying to overcome the “not-my-business approach” adopted by TRIPS (Art. 6), some countries are apparently trying to introduce a rule to the effect that 

“The Parties are encouraged to establish international exhaustion of rights” (Art. QQ.A.12). 

Some other parties do not appear so enthusiastic [US/AU/JP/MX]. 

Art. QQ.A.13 is surprisingly innovative too. It provides a normative ground for public domain acknowledgment, identification, promotion and preservation (not against, but) within the IP Law regime, in so giving it a role somehow consistent and in line with IP monopolies. Two versions of the article are currently debated. Both of them declare that “The Parties recognize the importance of a rich and accessible public domain for their societies and the need that public domain material shall be free for its use by all persons” and push for the identification of the public domain thought the creation of “publicly accessible data bases of registered rights, guidelines and other tools to enhance access to material in the public domain”. This could be quite revolutionary in some IP fields where the monopolised rights (and, consequently, the public domain) are far from being certainly identifiable. 

Finally and curiously, another brand new provision could bind all parties to go online with their IP rules, codes, statutes and regulations -- and, perhaps, IP databases too. We are talking about the potentially very-welcome Art. QQ.A.10, entitled “Transparency”, which currently states that

“Each Party shall endeavour to make available on the Internet … its laws, regulations, procedures, and administrative rulings of general application concerning the protection and enforcement of intellectual property rights; and … those details of patent, trademark, design, plant variety protection and geographical indication applications that are open to public inspection under national law” (para 2).