Leaked TPP document reveals IP details

A highly secretive document outlining how a proposed trade agreement between nations in the Pacific region could affect IP rights has been made public.

The document, which details negotiations surrounding the Trans-Pacific Partnership (TPP), has been obtained by news leaks website Wikileaks.

The TPP is a trade agreement being negotiated by countries in the Pacific region. The US is spearheading the talks.

Prospective members, also including Australia, Canada and Japan, are encouraged to strengthen their IP laws as a condition of joining.

The 95-page document, called Intellectual Property Rights Chapter, released on November 13, outlines several draft proposals on IP laws and enforcement for participating nations.

In September, WIPR reported that some member countries were thought to have agreed new measures covering patents, including increasing protection for pharmaceutical drugs.

Similar measures are included in the chapter, which calls for a lowering of global standards for obtaining patents, and says that developed nations, such as the US, Japan and Australia, should be able to extend the period of protection on medicinal drugs beyond 20 years.

However, this has been disputed by several of the negotiating countries, including New Zealand.

The chapter also outlines new measures to prevent copyright infringement, but says there should be circumstances when protection should be wiped out, including "lawfully authorised activities carried out by government employees, agents, or contractors”, for the purpose of law enforcement, intelligence, security, or “similar governmental purposes”.

In a statement, Wikileaks’ founder Julian Assange said the proposed regime would “trample over individual rights and free expression” and that the US was attempting to stamp its vision of IP on other negotiators.

“If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs," said Assange, who is living in the Ecuadorian embassy in London, following an extradition dispute.

The negotiations have been shrouded in secrecy since they started three years ago and members of the US Congress have only been allowed to view portions of the agreement under supervision.

“It is strange that such an important text which has a section on transparency should be negotiated with the secret input of only a few chosen industry representatives,” said Bob Stoll, partner at Drinker Biddle & Reath LLP, in Washington, DC.

Stoll added that several of the provisions were in “very unsettled areas” where the courts and the elected legislators were attempting to clarify laws in the US.

Kensaku Takase, partner at Baker & McKenzie LLP in Tokyo, said the scope of the issues covered was “much broader” than had been identified in the media to date.

Takase said while efforts to align or harmonise the national positions on IP laws should be welcomed, there remain unanswered questions, as there still appears to be disputes between parties.

“The question remains for me, why couldn’t a lot of these issues be discussed with public or interest group input,” Takase said.

“Clearly there are some industry groups which have done a lot better than others, to get representation.”

The 30,000 word chapter on IP, which is in draft form and has identified yet-to-be agreed text in brackets, also reveals varying positions among negotiators on protection for online copyright.

The text reveals a scheme proposed by Australia, the US and Singapore that would see Internet Service Providers(ISPs) acting as a watchdog for potential infringements, after those countries opposed an alternative provision to limit ISP’s liabilities for hosting infringing material.

One provision calls for ISPs to issue subscriber’s information including a telephone number or address to rights holders.

“It [an ISP] would also provide a statement agreeing that a subscriber accused of infringement ’agrees to be subject to orders of any court that has jurisdiction over the place where the subscriber's address is located’,” the chapter says.

Takase said: “Some countries appear to want ISPs to have very limited liability, whereas others appear to want ISPs to have obligations to control content over their networks”, describing the topic as “particularly controversial”.

The chapter also calls for a requirement to allow for electronic applications of trademarks and an online trademark database.

The release of the chapter comes before a potentially decisive TPP chief negotiators summit in Salt Lake City, US, at the end of the month.

Countries involved in the TPP talks are Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the US and Vietnam.

The full report can be viewed here.