Intellectual Property in the TPP: Not 'The New TRIPs.'

By Weatherall, Kimberlee | Melbourne Journal of International Law, December 2016 | Go to article overview

Intellectual Property in the TPP: Not 'The New TRIPs.'


Weatherall, Kimberlee, Melbourne Journal of International Law


The intellectual property (TP') chapter in the Trans-Pacific Partnership ('TPP') was one of the most contentious during negotiations, and remains controversial in signatory countries. This article examines the background to, and content of, the TPP's IP Chapter, and comments on its merits from two perspectives. First, it considers ch 18 as an IP chapter in a trade agreement, assessing the extent to which it is likely to promote trade and foreign investment, address trade-related issues in IP, reduce barriers to trade in IP or IP-intensive goods, facilitate economic integration, or promote or detract from broader trade goals of the TPP. Second, it considers the IP Chapter as a set of IP standards to be applied in TPP countries at a domestic level, arguing that ch 18 constitutes a backward-looking, incoherent and unbalanced set of standards that cannot be a model for future multilateral discussions. The IP Chapter is therefore a failure: it does not address the real issues in IP-intensive trade, and lacks merit as a set of IP standards. This conclusion provides further support for critics who characterise the chapter as merely the result of naked rent-seeking.

Contents

I   Introduction
II  Evaluating Chapter 18 as Part of a Trade Agreement
       A Will the TPP Increase Trade or Technology Transfer by Raising
         (Domestic) IP Standards?
       B Does the IP Chapter Reduce Barriers to Trade or Facilitate
         Cross-Border Business?
       C Does the IP Chapter Contribute to or Detract from the Broader
         Trade Ambitions of the TPP?
III Evaluating Chapter 18 as a Set of IP Standards
       A Does Chapter 18 Provide a Balanced Set of IP Rules?
           1 Does the Chapter Provide Sufficient Flexibility to Engage
             in Future Reform of IP Law, or Will It Hamper Law Reform
             Processes?
           2 Does Chapter 18 Provide a Clear, Coherent Set of IP Rules?
IV  Conclusions: Is Chapter 18 'the New TRIPS'?

I INTRODUCTION

The intellectual property ('IP') chapter in the Trans-Pacific Partnership ('TPP') (1) was one of the most contentious during negotiations. (2) Over the course of negotiations, it was the subject of multiple leaks and conspiracy theories and, in the later stages, a standoff over biologics data protection. (3) It remains controversial in signatory countries where ratification is being debated. (4) But at the 2016 Fordham IP Conference in New York, a senior government official and TPP negotiator likened ch 18 of the TPP to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (' TRIPS'). (5) This is a grand claim indeed: TRIPS has been described as 'the most significant development in international intellectual property, certainly of the twentieth century'; (6) one which ushered in 'a brand new era' in global IP regulation. (7)

Claims that ch 18 will play as central a role in international IP law as TRIPS are both overblown and premature. The TPP is no World Trade Organization and ch 18 is not, at least for now, the new global IP standard. The rather motley collection of countries that negotiated the TPP is first and foremost regional, and thus excludes both major IP owning and generating powers like Europe and swathes of the world's poorer countries. Indeed, the TPP group is sub-regional: it excludes key players, including most obviously China, but also India, South Korea and Indonesia. (8) The TPP would need to expand its membership to have even serious regional significance, let alone a global role.

Furthermore, at the time of writing--in September 2016 and in the heat of a controversial US presidential campaign--we do not know whether the TPP will ever come into effect. The international environment for trade liberalisation and for economic integration is in a state of flux, if not crisis. The European Union has been shaken by a British vote for Brexit; and major countries in the EU including Germany have turned against the Transatlantic Trade and Investment Partnership ('TTIP') negotiations with the US. …

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