The Trans-Pacific Partnership and Intellectual Property | Citizens Against Government Waste

The Trans-Pacific Partnership and Intellectual Property

The WasteWatcher

On October 5, 2015, negotiations for the TPPA concluded and a summary of the 30 chapters of the agreement was released.  Chapter 18 of the agreement specifically discusses the rights and responsibilities of each TPP member nation in protecting IP.  The 12 TPPA member nations are Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. 

On November 5, 2015, Citizens Against Government Waste released an issue brief on based on the summary of the Trans-Pacific Partnership trade agreement (TPPA).  That same morning, the U.S. Trade Representative posted the full agreement online for public viewing.  While CAGW’s report provided a glance of the basic tenets of the agreement based on the previously released summary, much of what is in the report remains consistent with the final agreement.

The summary of the TPPA revealed that efforts to weaken copyright protections failed and countries that sign the agreement will be held to the higher standards found in the U.S.  Countries that sign the TPPA will also be required to protect brands and trademarks.  These and other provisions related to enforcement and administration should reduce uncertainty related to the protection of IP in the TPP countries.

However, the biggest stumbling block related to IP for moving the TPPA forward will be the provisions related to biologics.  The U.S. has 12 years of data exclusivity; Canada and Japan have eight years; and the rest of the TPPA nations either have either five or zero years.  Despite the current U.S. law, the Obama administration has been trying since 2011 to change the exclusivity to seven years.  It appears that U.S. negotiators transferred the President’s desire for a shorter regulatory exclusivity to the TPPA of either five or eight years, and acceded to the demands of member countries, many of which have a questionable record on intellectual property.

Already, concerns are being raised on Capitol Hill about the concessions made in the agreement regarding the biologics provisions.  As noted by Senator Orrin Hatch (R-Utah), “If countries want to trade with the U.S., we should demand that they respect and enforce the intellectual property rights of American businesses and individuals.”  He further stated, “That means including strong provisions protecting intellectual property in our trade agreements and a requirement that intellectual property rights commitments be implemented before allowing the agreement to enter into force for our trading partners.”

Congress and the public have the opportunity to view the TPPA to ensure that it meets with the criteria set forth earlier this year in the Bipartisan Congressional Trade Priorities and Accountability Act (TPA) (Public Law 114-26).  If either chamber of Congress does not believe the negotiated agreement complies with TPA, an unprecedented safeguard was included in the law that allows for consideration of a Consultation and Compliance Resolution (CCR).  The CCR would state that the president failed to comply or consult with Congress on trade negotiations in accordance with the TPA, and, therefore, fast-track procedures would not apply to the bill to implement such a trade agreement.

The 30 chapters of the TPPA encompasses agreements that range in scope from trade remedies and investments to labor and environmental issues.  Over the long term, trade agreements have proven to be beneficial to the U.S. and global economies.  The TPPA should be thoroughly vetted with this in mind.

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