Book Review: The Trans-Pacific Partnership: Intellectual Property and Trade in the Pacific Rim

This Kat is delighted to review “The Trans-Pacific Partnership: Intellectual Property and Trade in the Pacific Rim”, by Matthew Rimmer (Edward Elgar Publishing, 2020, 616 pp). The Trans-Pacific Partnership (TPP) was a mega-regional agreement, which involved 12 negotiating states, including the US. After the US withdrew from the negotiations, the remaining 11 states renegotiated a new agreement, known as the Comprehensive and Progressive for Trans-Pacific Partnership (also known as TPP-11). Nevertheless, the new agreement which entered into force in December 2018, incorporated many norms that were included in TPP, which in turn were influenced by US norms.

In the book, Rimmer takes a cross-sectoral analysis to IP-related norms of the TPP-11. From copyright exceptions and limitations, through geographical indications to trade secrets protection, the author looks at numerous ramifications that TPP-11 will have, not only on signatory states, but also on IP norm-setting internationally.

Moreover, in each chapter, the analysis of TPP-11 norms is supplemented by an extensive discussion of national laws and caselaw of the relevant signatory states. Theoretical foundations are found in works by Joseph Stiglitz, a Nobel laureate in economics, who himself has extensively studied the economics foundations of the TRIPS Agreement.

The book opens by reminding readers of issues present in international IP law since the conclusion of TRIPS in 1995, namely the conclusion of TRIPS-plus agreements, that constantly raise the level of protection and enforcement of IP rights. TPP-11, whose text was strongly shaped by the US via TTP, is no exception. The book then continues with an introduction, where the political history and evolution of TPP, and then TPP-11, are presented.

In Chapter 1, copyright norms of the TPP-11 are discussed, including copyright term extension, which was advocated by the US, but ultimately not incorporated in the Agreement. Rimmer calls TPP the Micky Mouse agreement, by analogy to the nickname given to the US Copyright Term Extension Act, and strongly implies that these norms in TPP were lobbied by Disney. The author further ponders whether copyright norms under TPP-11 will have an adversarial impact on cultural heritage, not only in signatory states, but also worldwide, by setting a new lengthier global minimum standard for copyright duration.

Chapter 2 looks at the copyright exceptions and limitations and how the US approach to the issue was only partially exported through TPP and later TPP-11. While fair use is one of the cornerstones of the US copyright regime, the export of the fair use exception through trade agreements was opposed by US right holders. As the result, many US copyright norms are exported to third countries, but without the counter-balance of a fair use exception.

In Chapter 3, the author discusses how the US Digital Millennium Copyright Act (DCMA) norms on safe harbours and intermediary liability shaped US trade agreements, which ultimately filtered through to TPP-11. Chapter 3 also provides an analysis of national IP enforcement measures on the Internet in countries that are parties to TPP-11.

Data-related provisions in TPP-11 are the subject of Chapter 4. As in most other spheres, the norms were strongly influenced by the US via TTP. The author criticises a weak protection of personal privacy, as compared to strong protection accorded to right holders elsewhere in the Agreement.

In Chapter 5, the author analyses how trade mark protection and enforcement are regulated in TPP-11. Although the Anti-Counterfeiting Trade Agreement (ACTA) never came to life, its TRIPS-plus provisions are now revived in TPP-11.

Chapter 6 then looks into the investor-state dispute settlement (ISDS) arrangements in TPP-11. Against the background of recent investment disputes (Philip Morris v Uruguay and Philip Morris v Australia) and recent trade agreements with ISDS norms (the United States – Mexico – Canada Agreement, USMCA, and the EU/Canada Comprehensive Economic and Trade Agreement, CETA), this chapter addresses the impact of ISDS on public health regulation.

In Chapter 7, the author discusses how the US shaped the provisions on geographical indications in TPP-11. While the EU is actively exporting its own strong views on geographical indications as a sui generis right, the US favours trade mark-based protection for this category of rights.,

The impact of TPP-11 on agriculture and food security is addressed in Chapter 8. The author reviews provisions on plant breeders’ rights in TPP-11, and compares them with other recent agreements, such as USMCA and Regional Comprehensive Economic Partnership, RCEP. While the US and Japan pushed for patent protection for plants and animals in TPP-11, this position was met by resistance from other nations, mainly due to concerns over food sovereignty.

In Chapter 9, Rimmer discusses TPP-11 and public health, including the issues of compulsory licensing, patent linkage, and patent term extension. Here again, TPP-11 provisions were strongly influenced by the US position.

Chapter 10 looks at TPP-11 and biotechnological patents, first discussing various legal approaches to gene patents taken in the US (including the Myriad Genetics case, addressed by The IPKat here and here), Canada, and Australia. Although the US tried to impose its approach for the protection of biologic drugs, these norms were ultimately not adopted in the final text of TTP-11.

Chapter 11 focuses on trade secrets protection in TPP-11. Jurisdictions such as the US or the EU have recently passed legislation on trade secrets, and the recent trade agreements reflect this trend. After presenting mandatory and optional remedies found in TPP-11, Rimmer inquires as to whether they present a threat to freedom of speech (especially in countries without strong free speech protection) and innovation.

Environmental protection, biodiversity and climate change are addressed in Chapter 12 of the book, as TPP-11 includes a dedicated chapter on environment. The author discusses the relationship between TPP-11 and multilateral environmental treaties. The topic is continued in Chapter 13, which specifically looks at TPP-11 and climate change. During the negotiations, the US blocked any reference to the Paris Agreement and the final text of the TPP-11 fails to mention climate change at all.

The book closes with Chapter 14, where TPP-11 and traditional knowledge is addressed. The agreement includes a “may” clause on respecting, promoting and preserving traditional knowledge.

Although the US impact on TPP-11 predominates, the book will be useful to researchers and policy-makers involved in international IP norm-setting not only in the Pacific Rim, but also elsewhere where trade agreements are currently negotiated. This book will also be of benefit for those studying trade agreements from a political science perspective.

ISBN: 978-1788973311

Published by: Edward Elgar Publishing

Format: Hardback (£130.50) and eBook (£25.00)