We dive deeper into the issues in this
month's cover story, as well as what the IP chapter of the TPP will mean
for each of the 12 countries. It is difficult to give a pithy summary of the IP
chapter, given that it is 74 pages long, but it is fair to say that many of its
provisions may be categorised as "TRIPS-Plus" and carry a strong US
influence. Both supporters and detractors have used similar terms to describe
the TPP, though whether that is a positive of negative thing really depends on
who is speaking.
That said, there are still several provisions that do not
reflect US law. One example is data exclusivity for biologics. US negotiators
had originally pushed for 12 years of exclusivity, while developing countries
and even some advanced economies like Australia drew the line at five. The final
result, which is either eight years of protection or five years plus other
protection and "market circumstances", is a victory for the countries
pushing for a shorter period. Furthermore, for countries that already offer
five years of exclusivity, there is likely no need to change the law at all as
it is believed that time-consuming procedures such as securing market approval,
along with the five years, is enough to satisfy the requirement, even if the
protection period is in reality less than eight years.
That said, many provisions reflect US-style laws. Copyright
protections is one area, where the TPP calls for a life plus 70 years term of
protection identical to US law. Several countries are still at the TRIPS level
of life plus 50 and will have to amend accordingly. The treaty also would
require DMCA-style safe harbours for ISPs. Similarly, several practitioners
from around the world say that their respective countries will have to amend
their laws to include a US-style patent grace period.
The other noteworthy aspect of the TPP is what specific
countries will have to do to comply. Because the treaty was designed to include
a large group of countries at various levels of economic development, this
means that the effect will be very different for each country. While more
advanced economies like the US will have to do little if any to comply with the
treaty, smaller countries such as Brunei may this as a chance to revise and
update laws that have not been changed in a long while. And to throw another
wrinkle into it, several of the countries, such as Singapore, already have free-trade
agreements with the US, meaning that theirIP laws are already largely in
line with the TPP.
For more on the TPP, check out the
full-length story here. And as always, we welcome your comments and look
forward to bringing you more coverage as countries move to debate, ratify and
implement the treaty.