Rethinking IP in the TPP: Canadian Government Plays Key Role in Suspending Unbalanced Patent and Copyright Rules
Years of disappointment in trade negotiations have left many Canadian intellectual property watchers hoping for the best, but expecting the worst when it comes to the IP provisions in trade deals. In earlier talks, Canadian negotiators would often advocate balanced positions during the negotiations, but ultimately cave to (primarily) U.S. pressures during the final round of talks. Given that history, this week’s outcome of the TPP11 is reason for celebration as the second largest economy in the TPP finally acted like it. The Liberal government demonstrated genuine leadership in demanding significant changes to the flawed TPP intellectual property chapter and refusing to back down under intense pressure from some of the negotiating parties. The result isn’t perfect, but the newly named Comprehensive and Progressive Agreement for the Trans Pacific Partnership (CPTPP), which still requires considerable negotiation, features a significantly improved IP chapter that suspends some of the most problematic provisions.
Weeks after the release of the TPP text in 2015, I wrote a lengthy series on the Trouble with the TPP. Many of the most problematic provisions, including copyright term extension, digital lock rules, and intermediary liability have been suspended from the CPTPP at the insistence of the Canadian delegation. Their removal is a remarkable victory for those that argued against overbroad, restrictive copyright provisions in the TPP and maintained that there was no reason to include unbalanced copyright provisins in a modern trade agreement.
The full list of suspended IP provisions, with links to my original posts on the issues in the Trouble with the TPP series, include:
- Patentable Subject Matter – Article 18.37.2 and 18.37.4 (Second Sentence)
- Patent Term Adjustment for Unreasonable Granting Authority Delays – Article 18.46
- Patent Term Adjustment for Unreasonable Curtailment – Article 18.48
- Protection of Undisclosed Test or Other Data- Article 18.50
- Biologics – Article 18.51
- Term of Protection for Copyright and Related Rights – Article 18.63
- Technological Protection Measures (TPMs) – Article 18.68
- Rights Management Information (RMI) – Article 18.69
- Protection of Encrypted Program-Carrying Satellite and Cable Signals – Article 18.79
- Legal Remedies and Safe Harbours – Article 18.82 and Annexes 18-E and 18-F
- Conservation and Trade (measures ‘to combat’ trade) – Article 20.17.5 – suspend “or another applicable law” and footnote 26
- Transparency and Procedural Fairness for Pharmaceutical Products and Medical Devices – suspend Annex 26A – Article 3 on Procedural Fairness
In addition to the IP provisions, the CPTPP includes suspension of some ISDS provisions, resolution of telecommunications disputes, and the need to address Canadian concerns on cultural protections (analyzed here, here, and here). What remains isn’t perfect – many of the concerns associated with the e-commerce chapter are left untouched – but the IP changes are very important. They restore some balance to that chapter and signal that Canadian officials are prepared to give more than just lip service to the issue when it comes to negotiating contentious IP provisions with our trading partners.