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Saturday, 13 January 2018

Multilateralism v Bilateralism: What’s in it for international IP regulation?

A diversity of cats all looking out for global IPRs
From the TPP to the CTPP

The Trans-Pacific Partnership (TPP) (in the post-US withdrawal era called the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)) continues to be an important plurilateral trade agreement (with substantial and extensive IP provisions) even in the post-US withdrawal era. The remaining parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam) agreed in November 2017 to suspend a number of provisions of the TPP text among which also such that concern IP. The negotiations continue and their final outcome is yet uncertain.

But what did TPP say about IP?

Well, to answer this question one should start by answering what did TPP say about anything? The TPP was – if not anything else – a unique specimen of treaty drafting. The Agreement’s 30 chapters regulated a wide range of trade-related issues, with IP being one of them. The obligations stated in these chapters were binding for parties to the agreement.

That is only the case if the several annexes and side letters the agreement contained fail to provide for an exception, derogation or some kind of other special treatment provision. TPP members have in fact during negotiations engaged in the drafting of a considerable number of side letters (bilateral or trilateral), providing for clarifications and interpretation of TPP provisions, as well as special party-to-party deals.

Naturally, one of its most contentious chapters was the one related to Intellectual Property Rights (Chapter 18), while at the same time several provisions in other chapters of the agreement concerned IP intensive industries, thus indirectly influencing the regulation and enforcement of IPRs.

The patent law-related provisions of the TPP include everything from reminders of TRIPS or EPC provisions, to innovative solutions, such as for instance that of 12 months grace period for patent applicants as well as the possibility to require a protection term extension in cases of unreasonable granting authority delays (when no decision is reached five years since the date the patent application was submitted or three years since the request for examination see Article 18.46 TPP).  Chapter 18 provides even for patent linkage, demanding that national marketing authorisation authorities become some kind of patent enforcement police.

Reading chapter 18 of the TPP is of course not enough if you are interested in how TPP would attempt to change global IPRs. You would also need to read Chapter 9 (Investments) where it was stated that IPRs are classified as investments under the TPP which also means that rightholders are entitled to initiate ISDS proceedings (Investor-State Dispute Settlement). States’ decisions considered harmful or discriminatory for investments (thus also for IPRs) including anything from exceptions to patent rights, compulsory licenses and decisions not to grant patent rights could expose a party of the TPP to lengthy and costly arbitration proceedings. Finally, Chapter 26 on Transparency and Anti-corruption gives pharmaceutical companies the mandate to intercede procedures related to reimbursement listings for pharmaceutical products and medical devices. Although not directly related to IP this chapter definitely provides favourable conditions for the commercialisation of patented pharmaceuticals.

The future of TPP / CPTPP

Unfortunately (or fortunately?) the TPP (in this form at least) was not meant to be. The withdrawal of the US marked a new area of negotiations. While the fact that the US is no longer a member undoubtedly limits its scope, it also opens up for new parties not envisioned in the original negotiations. In early January 2018 the UK was been reported to have initiated procedures in order to join CPTPP negotiations in the post-Brexit era.

The future of IP?

While technology and business models develop in a speedy and global manner the work of intergovernmental organisations and international treaty negotiations in the field of trade and IP evolve slowly, if at all.

Since negotiations related to international IP instruments (and notable ones such as the TRIPS Council, the Patent Law Treaty) seem to have paused during the past twenty years, bilateral, trilateral and plurilateral initiatives have dominated the international IP scene. With the IP geography largely modified during the past few years (three Asian countries among the world’s top five patent filing states) there is also a shift in the negotiating forces, and the US and EU do not dominate the game anymore.

The question is of course, which format of international negotiations serves the IP cause best? That of bilateral party-specific IP clauses incorporated in trade agreements or the multilateral treaty model promoting transparency and a certain level of uniformity in the application of rules? Although the TPP was not a multilateral international treaty it was close enough, taking into consideration the importance of its signatories and its scope. However, one cannot but ask what is so positive with multilateralism when it neither provides enhanced transparency nor equal standards for all parties?  The TPP was not transparent, it was not democratic (it was in fact negotiated in secrecy) and it did not entail same (or at least similar provisions) for all. And although some of the provisions are suspended, its format and structure seems to remain intact under the CPTPP. Maybe this is also what has made it so attractive.

Secured diversity in trade and IP regulation even if this is made possible on the basis of the same negotiating platform seems to match the diversity of modern trade actors and their needs.

TRIPS has taught us a major lesson after all … one size does not fit all.


Andy said...

After reading the section headed "But what did TPP say about IP?" one could be forgiven for thinking Chapter 18 was all about patents. Whilst the IPKat can at times be very patent-centric, this write-up really doesn't give the full picture.

All the current IP rights, including developing areas such as GIs and trade secrets, are covered fairly comprehensively, although not, in my opinion, even-handedly. In summary, what chapter 18 seeks to do is impose First World standards on the other Parties in a heavy-handed way which quite obviously favours the USA and in particular its pharma and media sectors. For example all parties would be forced to extend their period of copyright protection to the US/EU standard of lifetime plus 70 years. There are extensive provisions for the use and enforcement of TPMs and RMI (Rights Management Information). as well as mandatory safe harbour protections - something which might run counter to current EU thoughts on the subject. Within the trade mark section there are extensive provisions for "well-known" trade marks to be recognised in territories where they are not actually registered; again, a clear nod towards US global Interests. If companies such as for example, Coca-Cola or Mercedes Benz, want their trade marks to be respected in other nations, they should fork out the fees and register them there, not rely on international treaties to give them preferential rights. (the Toyota Prius case comes to mind)
And for reasons best known to the drafters, there are very detailed provisions for how to run a civil judicial regime for the benefit of claimants, with virtually no mention in the main Articles of the proposed treaty of limitations or exceptions which might favour defendants. For example, Article 18.21 'Exceptions' consists of just two lines related to a fair use exception within trade mark use. Any other references, such as they are, to what we might recognise as fair use / fair dealing exceptions are buried in the ancilliary notes and derogations. Compare this situation to a weak and non-specific Article on the Public Domain, and another on Exhaustion of rights, and you have all you need to know about whose interests TPP was intended to serve.
TPP is not a trade treaty, it's a piece of modern day economic imperialism with all the advantages stacked against the less wealthy nations. Let's hope that if CPTPP ever comes to fruitition (without the guiding wisdom of the USA) it does a much better job with regard to IPRs.

Treatywatch said...

Just keep the US and the EU out of IP chapters generally in future multilateral deals. Ghost of ACTA throws a long shadow. Their approach when combined to IP in trade agreements is appalling. Good they lost in WIPO with the Treaty for the Visually Disabled. They feel that so keenly-they wish to by pass WIPO in the future where negotiations are open for NGOs to sit in and blog about who says what.

It is only out of sheer local shame that the EU was forced to implement last year.

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