The US Proposal for IP Enforcement in the TPPA and Impacts for Developing Countries

The United States proposal for the TPPA includes many demands that will increase intellectual property rights for rightholders. The leaked text reveals that the United States seeks to introduce numerous measures that go well beyond the requirements of the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property (TRIPS), known as TRIPS-plus provisions. Some of the areas of concern include the provisions on intellectual property enforcement. KEI has done analysis of the US proposals on intellectual property enforcement, available for download here.

The TPPA currently includes eleven negotiating parties of vastly different economic backgrounds: the United States, Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. Other countries, like Thailand and Japan have been rumored to be the next to join, and the agreement is intended to eventually cover the entire Asia-Pacific region, including least developed countries like Laos or Myanmar.

Intellectual property systems must provide appropriate balance and important development concerns are affected by intellectual property rules. The high levels of intellectual property protection and enforcement proposed by the United States can create unnecessary barriers to progress and development.

Leaks of the United States proposal reveal not only efforts to increase the rights of rightholders without sufficient safeguards to protect the public interest through substantive copyright or patent provisions, but also through increases in the minimum levels of enforcement. The enforcement provisions work in tandem with substantive copyright and patent provisions to tilt the balance of the intellectual property system in favor of rightholders, at the expense of users and consumers. Among other issues, the proposed enforcement provisions would impact access to medicines and access to medical technologies. The provisions could require countries to use scarce resources to investigate and prosecute intellectual property infringement despite the fact that intellectual property rights are private rights. Such use of government resources is costly not only for developing countries, but was also heavily criticized by the Republican Study Committee report examining the criminal enforcement provisions in the United States (that was later rescinded amid much controversy).

KEI has done analysis of five articles comprising the United States proposals for enforcement of intellectual property. The outline of the paper is as follows:

I. Introduction
II. Civil and Administrative Procedures and Remedies
A. Injunctive Relief
B. Damages
C. Seizure and Destruction of Goods
D. Right of Information
E. Administrative Procedures
F. Enforcement of Technological Protection Measures and Rights Management Information
III. Provisional Measures
IV. Special Requirements Related to Border Enforcement
A. Suspension of Release by Customs and Right of Inspection
B. Ex-Officio Action
C. Remedies
D. De Minimis Exception
V. Criminal Enforcement
A. Willful Infringement
B. Absent Willful Infringement
C. Motion Pictures and Audiovisual Works
D. Aiding and Abetting
E. Remedies
VI. Special Measures Relating to Enforcement in the Digital Environment
A. Expansive Definition of “Service Provider”
B. Impact on Universities
C. Notice and Takedown
D. Termination of Accounts of Repeat Infringers
VII. Conclusion