US Industry IP memo for the TPP negotiations leaked

Knowledge Ecology International (KEI) has received a copy of U.S. industry demands on the Intellectual Property chapter of the Trans-Pacific Partnership Agreement (TPP) negotiations. A draft letter from US industry to USTR has been leaked and is available here.

The letter was prepared by the Intellectual Property (IP) Task Force of the U.S. Business Coalition for TPP, that represents a cross-sectoral group of US companies and business groups including the Pharmaceutical Research and Manufacturers of America (PhRMA), the US Chamber of Commerce, and the Motion Picture Association of America (MPAA). The metadata from the MS Word file identifies the author as Anissa Whitten*, a former Department of State Foreign Affairs Officer who now works for the MPAA.

According to the letter, Industry is asking the US government for a number of TRIPS plus, WCT plus and ACTA plus provisions:

– To seek the highest possible IP protection from TPP negotiating parties.
– To built upon existing FTAs and use the US/Korea Free Trade Agreement as a baseline. Although the letter does not specifically mention the May 10, 2007 compromise that included important public health flexibilities in the US/Peru FTA, US Industry is clearly demanding the US government to reject the compromise as the basis for negotiations.
– To go beyond the Anti-Counterfeiting Trade Agreement (ACTA). For instance, it states that the TPP should outlaw camcording in theaters, despite the fact that the ACTA made it optional for countries to have criminal penalties for camcording.

The letter asks the US government to pay special attention to geographical indications, WIPO 1996 Internet Copyright Treaties, patent protection for software, test data protection, pharmaceutical reimbursement policies and IPR enforcement.

The provision on test data protection reads as follows:

Provide Robust and Effective Protection of Innovators’ Data. Innovative industries, including biopharmaceutical and agrochemical companies, expend tremendous effort and resources conducting research to demonstrate the safety and efficacy of their life-saving and life-enhancing inventions. Patent protection, which runs concurrent with data protection, does not protect the effort and investment needed to prove safety and efficacy of these products. Unless the data developed to prove a product’s safety and efficacy is effectively protected, companies are unable to recoup the significant investment required to generate the data and the costs of launching a product. As such, it is critical that the TPP ensure the robust and effective protection of innovators’ data.

With regarding to digital works and the Internet, the paper calls for a definition of commercial scale which is not tied to the profit motive of the infringer:

Commercial scale. The TPP must reflect the reality that right holders are harmed when illegal content is posted to the Internet with or without charge to the downloader and acknowledge harm to the infringed party rather than profit motive or the commercial purpose of the infringer.

The industry wants the agreement to mandate longer copyright terms:

Extended term of protection for copyrights to match US law. There is an unmistakable global trend toward extending the term of copyright protection. The TPP must reflect this reality, preventing a potential irritant to international trade that results from divergent terms among trading partners.

Relevant to the US consideration of the Hague Convention on the Choice of Court Agreements, and to many consumer protection concerns, the industry calls for the TPP to focus on the role of contracts.

Contractual rights. The TPP should affirm that all right holders are allowed to exercise economic rights in their own names and that any person acquiring or holding such economic rights by virtue of a contract must be able to exercise those rights and enjoy fully the benefits derived from those rights.

The industry wants the TPP to mandate software patents:

The language of the TPP agreement needs to be strengthened to specifically require providing patent protection for computer implemented inventions.

The main area where transparency is mentioned is in connection with the ability of the industry, including large drug companies and other health care providers, to have deeper access to the decision making process of regulators, including regulators who set prices.

The US industry position contrasts the New Zealand government position leaked last week that challenges the overprotection of intellectual property, particularly in the areas of copyright and patents and asks the TPP patent and copyright provisions be no more stringent than existing WTO TRIPS global standards.

For more information on the TPP negotiations, see:

* From a MPAA bio: “Anissa Whitten is Vice President of International Affairs and Trade Policy for the Motion Picture Association of America (MPAA). Ms. Whitten works with federal government agencies and Congress to reduce foreign trade barriers and improve protection of intellectual property in foreign markets for the U.S. motion picture, television programming and home video industries. Prior to joining MPAA, she worked in the State Department’s Bureau of Economic and Business Affairs as State’s expert on trade in services, representing the Department at World Trade Organization and free trade agreement negotiations. Her other policy portfolios included government procurement, trade capacity building, cultural diversity, and temporary entry. Whitten entered the State Department as a Presidential Management Fellow from the US Department of Labor’s Bureau of International Labor Affairs.”