On 20 March 2015, the European Union published a position paper on intellectual property outlining its priorities for the Transatlantic Trade and Investment Partnership (TTIP). At the time of publication of this position paper, the EU noted that “the U.S. has not yet formally identified the areas of interest that it could consider as priorities.”
As a basis for negotiations on intellectual property, the paper notes that,
the EU would like to address a limited number of specific IPR issues in TTIP that in our view currently limit the growth potential of transatlantic trade in IPR-intensive goods and services. We propose a chapter that would not cover all the classic IP subjects, but would instead focus on cooperation and a few core issues, while at the same time stressing the central role of IP in the transatlantic economy as a tool for innovation, growth and jobs.
A possible architecture for the TTIP IPR chapter could include four sections:
1. List of international IP agreements to which both sides are committed;
2. General principles stressing the importance of IP as a tool for innovation, growth and jobs, as well as a number of high-standard agreed principles on key topics;
3. Binding commitments on a limited number of significant IP issues;
4. Cooperation on areas of common interest.
On copyright, the EU flagged the following priorities as areas of offensive interest in the TTIP negotiations: 1) remuneration rights for broadcasting and communication to the public (public performance) for performers and producers in phonograms, 2) a full right of communication to the public (public performance) for authors in bars, restaurants and shops and 3) a resale right for creators of original works of art (Source: EU Position Paper on Intellectual Property, March 2015).
The position paper notes that the “EU already grants protection in all three areas through its acquis. It is important to obtain reciprocal treatment in the US to that currently available in the EU for US rightholders. Given that the artist resale right is also under consideration at the World Intellectual Property Organization’s (WIPO) Standing Committee on Copyright and Related Rights (SCCR), forward progress on the artist resale right in TTIP could possibly pave the way for a global norm (negotiated at WIPO).
On trade secrets and confidential business information, the paper notes:
There is shared interest among EU and US rights-holders in this area. The Commission has presented a draft proposal for a Directive. In the US there are also several legislative initiatives in place to harmonise the civil law rules on trade secrets since there is still no federal law in this field. Priority must be given to the domestic legislative process.
On “high-standard agreed principles”, the EU is pushing for the TTIP to cement
established practices on patent procedures and patentability criteria including regarding secondary use or incremental innovation, interference of regulatory entities and provisional protection of patent applications.
Even if only couched as “high-standard agreed principles” for the European Union and the United States, TTIP language on secondary use or incremental innovation could serve as a gold standard template in future trade agreements to erode low income and middle income countries’ policy space in setting patentability criteria.
On compliance with international IP treaties, the EU proposes a the following non-exhaustive list,
- TRIPS Agreement
- Rome Convention; Berne Convention; WIPO Copyright Treaty; WIPO Performances and Phonograms Treaty; WIPO Beijing Treaty and Marrakesh Treaty (if ratified in the meantime)
- Trademark Law Treaty; Singapore Treaty on the Law of Trademarks; Protocol Relating to the Madrid Agreement
- The Hague Agreement on Designs
- Patent Law Treaty
- International Convention for the Protection of New Varieties of Plants (UPOV 1991)
In relation to the compliance section, it is interesting that only the Marrakesh Treaty has the qualifier “if ratified in the meantime”. The United States has not ratified the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations yet the European Union does not attach a qualifier “if ratified in the meantime”. As stated by KEI in our comments to the Round 10 of the TTIP Stakeholder events on 15 July 2015,
The TTIP should serve as a platform for the EU and the US to agree to ratify and implement the WIPO Marrakesh Treaty for Persons Who Are Blind or Otherwise Disabled, and expand access to works accessible to persons with disabilities.