25 October, 2015
One of the most significant regional trade deals, the Trans-Pacific Partnership (TPP) trade agreement, was successfully concluded recently. TPP is aimed at bringing higher standards to nearly 40 percent of the global economy, made up of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam.
While the agreement is mostly focused on trade issues, there is an important intellectual property (IP) chapter.
The IP Chapter itself has not been disclosed, and it appears there is still drafting work in progress. In the meantime, a summary of the key features has been published. Based on the summary:
- The IP chapter will cover patents, trademarks, copyrights, industrial designs, geographical indications, trade secrets, other forms of intellectual property and enforcement of intellectual property rights.
- One of the most heavily negotiated areas of the IP chapter relates to pharmaceuticals and the duration of their protection. However, the summary itself does not go into any detail other than to say that the related provisions “facilitate both the development of innovative, life-saving medicines and the availability of generic medicines, taking into account the time that various [TPP] Parties may need to meet these standards”. According to the news sources, the specific topics to be covered will include (i) patent term extension for drugs and medical devices, (ii) establishment of data protection rules for new drugs, and (iii) a patent linkage system.
- For copyright, the IP chapter will require protection for “works, performances, and phonograms such as songs, movies, books, and software, and includes effective and balanced provisions on technological protection measures and rights management information.” These will need to be balanced with systems such as exceptions and limitations for legitimate purposes. It is expected that, based on the TPP agreement, TPP Parties should make the term of protection for copyrighted works effective for at least 70 years from the death of the author (for copyright works made by individuals).
- A “framework of copyright safe harbors” for ISPs will need to be established, wherein the safe harbors would not be contingent on ISPs monitoring for infringing activity.
- On enforcement, there will be a focus on protection of trade secrets through criminal procedures and penalties. In addition, there will be requirements to provide strong enforcement systems in general.
Even after the IP Chapter is published, the changes will need to be ratified in each TPP Party jurisdiction. This is likely to take some years depending upon the area of law.
For further information, please contact:
Kensaku Takase, Partner, Baker & McKenzie
Kensaku.Takase@bakermckenzie.com
