Comments for TTIP and TPP under scrutiny: how to assess the intellectual property chapter

1. Could you identify the most important topic according to the Commission? Can you explain the issue?

The most important topic for the Commission seems to be issues related to Geographical indications. Indeed, as the Commission notifies it in its negotiating papers and in its document Inside TTIP, EU and US have developed and share broadly similar principles concerning IP rights. However, EU has developed a sui generis and strong system of protection for agricultural products and foodstuffs, wines and spirits. On the contrary, US allow producers to protect their names as trademarks. From this discrepancy, many problems arise. For instance, many European products names aren’t protected under trademarks so that US producers use names of origin from a particular region but those products aren’t actually produced there. It is quite obvious that EU producers lose out from the misuse of their origin name. People fears that TTIP will weaken the European strong system and allow produces that do not respect GI system to enter European market.

2. Does the Commission respond to the fears expressed in the press on the IP chapter of TTIP?

The main fear is definitely the lack of transparency in the TTIP. Lots of contestations arise about the way it is negotiated. Civil society remembers and makes parallels with ACTA, which was rejected by European Parliament in July 2012 under the pressure of civil demonstrations. For the opponents, such important rules that affect technology, health, culture should be debated in transparent forums (European Parliament, US Congress,…) where society and stakeholders can be heard. It is told that TTIP tries to introduce through the back door some controversial measures adopted in ACTA but rejected by European Parliament. Even if Commission tend to make TTIP more transparent by publishing such document like Inside TTIP, the opponents don’t seem to be convicted. Commission remains very perfunctory and do not enter into details. However, their section “sensitivity/concern and EU response” at the end of each chapter is quite “reassuring”. It lets the public opinion knowing that EU Commission is aware and takes into account fears and concerns that can arise in the context of TTIP. As an additional effort of transparency, EU Commission publishes textual proposals on its website as well, which are more detailed and more precise.
A secondary fear is the difference between the two IPR’s systems. As explained supra with GI’s, the divergence can lead to a decrease of our acquired rights. By looking for the common denominator, maybe we’re going to attend to a levelling down. Again, the Commission promises that TTIP won’t weaken European systems but only improve them.
U.S. negotiators are pushing for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement (ACTA).

During the (reportedly) last full negotiating round left, the following issues appear to be ten of the more controversial issues:

Exclusive rights over test data: The U.S. has proposed exclusive rights over test data and many countries currently have data exclusivity in their laws. However, TRIPS only requires data protection of undisclosed information.

Patent linkage: The U.S. has proposed mandatory patent linkage (linking the drug regulatory approval to the patent status). Although patent linkage is highly controversial and not permitted in most European countries, some countries in the negotiation reportedly support some form of patent linkage while others are very much opposed.

Patent term extensions: The U.S. has proposed patent term extensions to compensate for both regulatory delays and patent office delays arguing that for countries note having delays in their marketing process or patent office, it will not affect them.

Evergreening patents (on new forms, uses and methods of using) commonly used by pharmaceutical companies to extend the life of the patent have been proposed by the U.S.

Patentable subject matter: The U.S. has completely reversed TRIPS’ legislation, which explicitly allows parties to exclude certain categories from patentability, by proposing a requirement to provide for patents on plants, animals, diagnostics…etc.

Copyright terms: The U.S. has proposed very long copyright terms (a period of life plus an addition of Xyears) which, according to criticism, often result in a deadweight loss and, for net-importing countries of intellectual property, the royalty results in a net flow and hence pure transfer overseas. Even within the United States, this term has been controversial and suggestion has been made to introduce formalities for terms beyond what is required by international law or a copyright term structure that actually went below international standards.

Technological Protection Measures (TPMs): based on the DMCA, which went well beyond the requirements of the WIPO Internet Treaties, the escalate protection of digital locks will compel signatory nations to enact banning circumvention of it, treating TPM provisions as a separate offense even when no copyright infringement is involved.

Internet Service Provider (ISP) liability: largely based on the DMCA, the U.S has proposed to impose a one-size-fits-all model on TPP countries. This model provides for safe harbor for ISPs, provided that they comply with a list of requirements (notice-and-takedown system and graduated response system). But in the United States, this system has been widely abused and takedown notices have been requested to target business competitors, restrict free speech, or interfere with political ads during election seasons.

Criminal enforcement: The U.S. proposal on criminal enforcement strips countries of their TRIPS flexibilities to define commercial scale infringement, applying even to copyright infringement done without a commercial motivation. It will require parties to provide for both terms of imprisonment as well as monetary fines over file sharing. This proposal greatly increases the scope of behavior that can be criminalized and also strips away the power of countries to decide for themselves whether they want to include imprisonment sentences for intellectual property infringement.

Border measures: the U.S. proposal in the TPP would seek to expand the TRIPS agreement to stop infringing goods from entering the channels of commerce of that country to both in-transit goods as well as goods that are exported. Such application will not only place a greater burden on customs and border officials of limited resources and there have been several seizures of legitimate goods, where the product was legitimate and lawful in both the country of import and export, but was nonetheless seized in the country of transshipment.

As a result of the adoption of these proposals, the balance of the intellectual property system will be tilted too greatly in favor of the rightholder, without appropriate safeguards and balance for consumers and patients.
The aggressive measures’ list here merely highlights some of the more contentious issues that could potentially reach a political level.

3. U.S. negotiators are pushing for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement (ACTA).

During the (reportedly) last full negotiating round left, the following issues appear to be ten of the more controversial issues:

Exclusive rights over test data: The U.S. has proposed exclusive rights over test data and many countries currently have data exclusivity in their laws. However, TRIPS only requires data protection of undisclosed information.

Patent linkage: The U.S. has proposed mandatory patent linkage (linking the drug regulatory approval to the patent status). Although patent linkage is highly controversial and not permitted in most European countries, some countries in the negotiation reportedly support some form of patent linkage while others are very much opposed.

Patent term extensions: The U.S. has proposed patent term extensions to compensate for both regulatory delays and patent office delays arguing that for countries note having delays in their marketing process or patent office, it will not affect them.

Evergreening patents (on new forms, uses and methods of using) commonly used by pharmaceutical companies to extend the life of the patent have been proposed by the U.S.

Patentable subject matter: The U.S. has completely reversed TRIPS’ legislation, which explicitly allows parties to exclude certain categories from patentability, by proposing a requirement to provide for patents on plants, animals, diagnostics…etc.

Copyright terms: The U.S. has proposed very long copyright terms (a period of life plus an addition of Xyears) which, according to criticism, often result in a deadweight loss and, for net-importing countries of intellectual property, the royalty results in a net flow and hence pure transfer overseas. Even within the United States, this term has been controversial and suggestion has been made to introduce formalities for terms beyond what is required by international law or a copyright term structure that actually went below international standards.

Technological Protection Measures (TPMs): based on the DMCA, which went well beyond the requirements of the WIPO Internet Treaties, the escalate protection of digital locks will compel signatory nations to enact banning circumvention of it, treating TPM provisions as a separate offense even when no copyright infringement is involved.

Internet Service Provider (ISP) liability: largely based on the DMCA, the U.S has proposed to impose a one-size-fits-all model on TPP countries. This model provides for safe harbor for ISPs, provided that they comply with a list of requirements (notice-and-takedown system and graduated response system). But in the United States, this system has been widely abused and takedown notices have been requested to target business competitors, restrict free speech, or interfere with political ads during election seasons.

Criminal enforcement: The U.S. proposal on criminal enforcement strips countries of their TRIPS flexibilities to define commercial scale infringement, applying even to copyright infringement done without a commercial motivation. It will require parties to provide for both terms of imprisonment as well as monetary fines over file sharing. This proposal greatly increases the scope of behavior that can be criminalized and also strips away the power of countries to decide for themselves whether they want to include imprisonment sentences for intellectual property infringement.

Border measures: the U.S. proposal in the TPP would seek to expand the TRIPS agreement to stop infringing goods from entering the channels of commerce of that country to both in-transit goods as well as goods that are exported. Such application will not only place a greater burden on customs and border officials of limited resources and there have been several seizures of legitimate goods, where the product was legitimate and lawful in both the country of import and export, but was nonetheless seized in the country of transshipment.

As a result of the adoption of these proposals, the balance of the intellectual property system will be tilted too greatly in favor of the rightholder, without appropriate safeguards and balance for consumers and patients.
The aggressive measures’ list here merely highlights some of the more contentious issues that could potentially reach a political level.

4. Is there an extension of copyright protection which will result in global regulatory convergence?

The negotiation of a Trans-Pacific Partnership between the United States and eleven countries in the Pacific region is much more advanced than the TTIP negotiations. On October 9th, WikiLeaks delivered the final version of the TPP’s Intellectual Property. The IP chapter of the TPP seems more developed and more contentious than what could/will be included in the IP chapter of TTIP. The IP Chapter of the TPP has perhaps been the most controversial chapter due to its huge effects on internet services, medicines, publishers, civil liberties and biological patents.

5. Are the rights belonging to copyright defined in the same way as in Europe?
No, there are not. It is a major criticism to the TPP: Europe will have to align its copyright provisions to US intellectual property laws, as it is set out as the new norm.

1.

GI’s are one area in particular where the Comission wants to see progress.
Many food and drink products from the EU are produced, processed or prepared in specific regions. They have ‘names of origin’ linked to where they are from. At the moment we have problems because the EU and the United States protect names of origin differently. With the current US system, many products are often sold in the US that use names of origin from a particular region in the EU but weren’t actually produced there. So the misleads consumers in the United States and it means EU producers lose out.

2.
The main fear is definitely the lack of transparency in the TTIP.
The European Commission has approved its proposal for a new and transparent system for resolving disputes between investors and states – the Investment Court System. This new system would replace the existing investor-to-state dispute settlement (ISDS) mechanism in all ongoing and future EU investment negotiations, including the EU-US talks on a Transatlantic Trade and Investment Partnership.

1.

TRIPS – Article 6

For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.

TTP – Article QQ.A.11

Nothing in this Agreement prevents a Party from determining whether and under what

conditions the exhaustion of intellectual property rights applies under its legal system.

In a few words, the exhaustion of IPR means that once an IPR holder sells its good or service protected by the IPR, he loses the right to control or limit the future use of this good or service. It means that the buyer can use, sell, etc. to anyone else given the fact that the original IPR holder has lost any right on the product. One considers that he has recovered the value of its IPR by selling it to someone else.

However, it isn’t that simple and the scope of the exhaustion is highly controversial. There is a never ending debate as to whether the exhaustion should be national, regional or national. On the one hand, some countries consider that once a good or service is sold in a country, the IPR owner has exhausted its IP rights but only in the country where he sold it for the first time = national exhaustion. On the other hand, other countries consider that the IPR holder owns a multitude of rights in every single country. These countries consider that in each country there is an “equivalent” or a “parallel” right that need to be exhausted every time the product is exported/imported. The IPR has to be exhausted in each country where it is sold. As a result, even after having sold his good or service once, the IPR holder will still be able to control/prevent/limit the exportation/importation of its rights to a third country = international exhaustion aka “first sale” doctrine. The regional exhaustion is somewhere in between as the IPR holder would exhaust its IPR but only in a part of the world and will still be able to control it for future sales in other regions.

Both articles (from the TTP and the TRIPS) provide the same answer to this exhaustion question. Even though the wordings of these rules appear to be different, the content is the same. In these agreements, the parties refused to adopt a stringent rule regarding exhaustion and thus let each country decide which exhaustion doctrine they would apply. On the one hand, the TRIPS states that nothing in the TRIPS can be used to address the issue of exhaustion. On the other hand, the TTP explicitly allows the countries to determine their exhaustion doctrine. These are different angles of approach but the substance remains the same.

As a matter of facts, it is well known that during the negotiations that led to the TRIPS, the countries weren’t able to raise a consensus regarding the exhaustion of IP rights (IPR). I guess they weren’t able to reach a compromise in the TTP neither. Thus, both agreements failed on addressing the exhaustion of IPR because of the lack of compromise. In my opinion, the reason for this lack is that each country has strong diverging opinion related to their interests: if they possess a lot of IPR or no IPR, if they produce more trademark related goods or services, copyrights, patents, etc.

2.

What is the dispute settlement procedure imposed for domain name cybersquatting? Can you very briefly explain this ADR system?

Article QQ.C.12: {Domain Name Cybersquatting}

1. In connection with each Party’s system for the management of its country-code toplevel domain (ccTLD) domain names, the following shall be available:

(a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation; and

(b) online public access to a reliable and accurate database of contact information concerning domain-name registrants; in accordance with each Party’s laws and, where applicable, relevant administrator policies regarding protection of privacy and personal data.

2. In connection with each Party’s system for the management of ccTLD domain names, appropriate remedies20, shall be available, at least in cases where a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trademark.

This is typically the kind of alternative dispute resolution established in order to fight the judiciary backlash and to minimize the costs of procedures. This ADR ensures the rights usually granted in other “classic” courts: “fair and equitable”, “does not preclude resort to court litigation”, etc. but also ensures a quick and cost-efficient procedure: “resolve disputes expeditiously and at low cost”, “not overly burdensome”. The reasons for the use of this type of ADR in Domain Name Cybersquatting may be the followings:

* Usually, these disputes do not call for long debates over the facts: there is a name that can cause a prejudice to a trademark or another IPR, period.

* Usually, these disputes do not call for extensive debates over the law as the disputes are often simple.

* The potential prejudice needs to be solved as soon as possible because it hurts the image of the IPR holder

* …

4.

Is there an extension of copyright protection which will result in global regulatory convergence ?

One of the defining battles in the Trans-Pacific Partnership (TPP) negotiations is whether its signatory countries will standardize copyright terms lengths to a minimum term of the life of the author plus 70 years. This would effectively set the maximum duration of copyright holders’ monopoly rights to over 140 years. This is the demand from rightsholder groups such as the RIAA and MPAA. International economists and law teachers agree that such an extraordinary long copyright term make no sense. It just gives more power to the powerful company and provides no further incentive for creation. Even the US Copyright Office has indicated that the copyright term may be too long, and proposed others options for mitigating its deleterious effects. In conclusion, I would say that the TPP will not converge the different world’s legislation into an unique one and will rather make the scheme more complicated because of the exsisting european legislation.

5.

Are the rights belonging to copyright defined in the same way as in Europe (compare with the 2001/29 InfoSoc Directive)?

In many countries, including six that are parties to the TPP negotiations, copyright terms remain set at life plus 50 years. This principle has been laid down in law as a global standard by two copyright treaties, the Berne Convention and TRIPS . Until now these countries (Brunei, Canada, New Zealand, Malaysia, Japan and Vietnam) have resisted extending their copyright terms further, because it would result in an uncompensated outflow of money to large foreign corporations, and because it would endanger their peoples’ ability to benefit from their own rich cultural heritage . The european style( life plus 50 years) has been created in the Directive 2001/29/CE. The objectives of the Directive on the harmonisation of certain aspects of copyright and related rights in the information society are to adapt legislation on copyright and related rights to reflect technological developments and to transpose into Community law the main international obligations arising from the two treaties.

1) The last page of the report is related to IPR issues. The commission focuses on a specific branch of IPR: Geographical Indications. It provides an intellectual property rights on some products described by registered geographical indications.
Nowadays, food and drinks products are protected by GI in the EU while they don’t have a specific regime in the US market besides the trademarks. Therefore, the EU wants to have the same degree of protection on the international level for its traditional products. Thus there is a need for greater protection on these products otherwise the producers will incur losses: the goods will be sold at a lower price because they are deemed less valuable than they really are. Through the commission regulation we may reach a higher quality food and an increase in home-grown products consumption.
2)Yes, the rule on exhaustion of IP deviates from the existing rule in international trade law. The doctrine of exhaustion in Intellectual Property Law, so called the “first-sale doctrine”, limits the right of an IP owner to control the distribution or resale of a good (an article) after he sold it. Therefore, the first sale of a good protected by a copyright, patent or trademark exhausts the intellectual property right of the owner: thereby, the buyer of the good can sell it to another person without the approval of the first seller (the IP owner).
The sixth article of the TRIP’s provides that subject to the provisions of the Articles 3 and 4, nothing in this agreement shall be used to address the issue of the exhaustion of intellectual property rights in order to settle the disputes (that occured under this Act). So, except when it involves the principles of national treatment and most favored nation, the agreement adopts a hands-off policy about the exhaustion rule.
At the opposite, about this matter, the TPP says that « Nothing in this Agreement prevents a Party for determining whether and under what conditions the exhaustion of intellectual property rights applies under its legal system ». So yes, it changes from what the TIP’s agreement provides.
3) The TPP provides that disputes about “Domain Name Cybersquatting” will need « an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy » to be resolved. The UDRP is a proceeding, a process that is quicker and less expensive than a standard lawsuit. It sets out the proceeding for the resolution of disputes between a party and a domain name owner. The system of Alternative Dispute Resolution includes a way that parties can settle dispute without the need of a trial, for instance with the help of a third party (but not necessarily). It is used to deter the parties to go to court, and to lead them to reach an agreement by themselves (an out-of-court settlement). A UDRP system contains different steps and the first one is the filing of a complaint by the IP owner. Then, the domain name may file an answer to which the IP owner may reply and eventually, the arbitrator rules.
4). The Chapter on the TPP about Intellectual Property aims to “promote high standards of protection, safeguard U.S. exports and consumers against IP infringement, and provide fair access to legal systems in the region to enforce those rights.”
The TPP IP Chapter (18th Chapter) has been one of the most controversial chapter. It seems to bring more cost than benefice in some issues: internet services, medicines, publishers, civil liberties and biological patents.
Internet services: “each Party shall ensure that legal remedies are available for right holders to address such copyright infringement and shall establish or maintain appropriate safe harbours in respect of online services that are Internet Service Providers.” (Section J, article 18.82)
Pharmaceutical products: articles 18.48 to 18.51
Copyright and related rights- Right of distribution : “each Party shall provide to authors, performers and producers of phonograms the exclusive right to authorise or prohibit the making available to the public of the original and copies66 of their works, performances and phonograms through sale or other transfer of ownership.” (article 18.60)
Biologics: “a Party shall provide effective market protection through the implementation of Article 18.50.1 (Protection of Undisclosed Test or Other Data) and Article 18.50.3, mutatis mutandis, for a period of at least eight years from the date of first marketing approval of that product in that Party or provide effective market protection.” (article 18.52)
5) There is no similar definition in TTIP and the 2001/29 InfoSoc Directive. In the first one it appears to be something really personal and concerning individuals whereas the second one is more global and in some way pluralistic. Indeed in the European legislation they see copyright and the rights related to it as having an impact on the common market and economy. Thus, in some way, having a strong legislation on this will permit to improve economical situation.
But if we pay more attention to what TTIP propose we can directly notice that even if it has an individual point of view it would have an impact on the economy and the common market either. Because those elements are linked one to another. So in a way we can say that the definition is not the same regarding each actor, but we cannot say they are totally different.
6) The TPP Intellectual property chapter includes new provisions that would induce Internet Service Providers to block websites without a court ruling, 20-year copyright term extensions, and new criminal penalties for the circumvention of digital locks. The definition copyright’s rights is not clear : Article 4.3 provides that copyright terms shall be “not less than the life of the author and 70 years after the author’s death.” TRIPS, on the other hand, sets the term at 50 years. In addition, 4.3 does not provide a presumption for the author’s death, unlike 17 USC § 302(e). ACTA does not address copyright duration.
On the other hand, if we compare with the protection in Europe based on the 2001/29 InfoSoc Directive. We see in the Article 9 that : Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.
We can see that Europe protect copyright and related rights in a manner that harmonizaton between the Member States is the solution to adopt to protect it right and favorised the internal market. However, we could say that the TPP will also protect copyrights and related rights in a different way. Because mostly it will benefit giants like U.S. In effect, The leaks also reveal that while other countries such as New Zealand and Malaysia were able to negotiate to phase in changes to copyright terms, Canada will be accepting new terms with no transition period. In plus, about copyright terms; Europe provides that it is none the less the life of the autor and 70 years after his death. The TPP onl extend his copyright terms to 20 years.

TTIP and IP rights After presenting IP rights as a way for innovation and encouragement for creativity, the Commission puts forwards some issues. It first comments that the EU has modern rules to protect IPR, and that the US as well. It adds that they are broadly similar in both countries and it should not be a problem taking into account that they already export and import goods and services that depend heavily on IP. However IGs are to some extent the real issue. In fact, they are the « names of origin » on food products and are protected differently in the US and in the EU. In the US, they are protected as trademarks whereas in the EU they are Gis. More over, a recent document of the parliament named « Overcoming Transatlantic differences on intellectual property » states that « issues such as geographical indications may become a stumbling block in the negotiations. » Therefor it could be misleading and the US should change its system. Against this fear, the commission assures that they will never import goods that use protected names. Oppononts don’t see it with the same eye, in fact they state that « Both parties are major producers of these products, so the issue has real commercial significance. But it also touches on cultural and ideological differences between Old World and New World economies. It’s not simply a matter of deciding what is “feta” or “champagne” and who can use those words. Europe’s GI protection scheme is part of a much larger policy that seeks to preserve traditional production methods and ways of life in the face of ».

Under the UDRP (Uniform Domain-Name Dispute-Resolution Policy), cybersquatting disputes must be resolved by agreement, court action, or arbitration before a registrar will cancel, suspend, or transfer a domain name. The UDRP is a quick dispute resolution procedure set by ICANN (The Internet Corporation of Assigned Names and Numbers). The holder of trademark rights file a complaint with an approved dispute-resolution service provider approved by ICANN. Currently, the World Intellectual Property Organization (WIPO), the National Arbitration Forum (NAF), the CPR Institute for Dispute Resolution, Asian Domain Name Dispute resolution Center (ADNDRC) and eResolution Consortium are the only authorized providers. Each of these providers in turn has their own set of supplemental rules which have to be adhered to by a complainant who opts for that particular provider. Additional dispute resolution policies may apply to specific circumstances only in individual TLDs. The foremost advantage of the ICANN dispute resolution policy rests in its speed and relative low costs. A respondent must reply within 20 days of complaint, and once the submissions are complete the panel has 45 days to issue its decision.

The Trans-Pacific Partnership (TPP) aimed at liberalizing trade and investment between twelve Pacific States. These countries account for nearly 800 million people and represent about 40% of the global economy. TPP is espacially inovating because it extends to areas such as exchange of data and intellectual property that were not covered by previous multilateral agreements and also establishes mechanisms for addressing disputes between foreign investors and governments. By the TPP, governements hope that they will open new markets for local products, and for sure, to open the market space, they need to write the rules, setting a high standards to protect workers and preserve the environment. Doing that, they hope that China – the big absent – will have less power in the world. But civil society organisations believe that it will lock up tchnology, independant innovation. They think that it will not create jobs but in place there wil be stagnating employment. US has been rigid during the negociation of the TTP, because they wanted to have a better protection of the intellectual property. They were concerned by the rights of the giants made in US, like the music industries or the IT compagnies. US were the most concerned by this kind of protection. Australia were too, espacially about the pharmaceutical area. Those different countries weren’t agree about some subject, the most important one were that Canada, the US and Japan refuse to open their markets to imports of Australian dairy and New Zealand. For their part, Australia, Peru and Chile opposed the protection enjoyed until now the US pharmaceutical companies, and North Amercia refused to import Japanese auto parts.

The TPP will increase the copyright protection. More protections will be established. First, the term of copyright will be extended for twenty years. Moreover, some criminal penalties will punish the person who hack. Finally, certain sites should be blocked without any court decision because of the new provisions. Internet freedom will be diminished in order to increase the copyright protection.

Lina Alhathloul, Julie Vandingenen, Céline Arcari, Haikui Barsegian, Nathan Schurmans and Tiffany Bogaerts.

The commission puts a lot of emphasis on the importance of IPR in the sector of innovation and creativity. The commission maintains that IPR are essential to both the US and the EU economy, and that as trade and partnership in innovation is already very developed, TTIP should aim at developing closer rules on IPR.
The commission puts particular importance in protecting European geographical indications (GIs), GIs don’t exist in the US, that uses instead Trademark protection for products. This system is highly problematic for EU producers, as they could lose out on the US market, and lose control of their product.
Two of the main concerns that the Commission addresses are the increase in price of pharmaceuticals and the protection of GIs. The commission maintains that IPRs on pharmaceuticals need to be a balance between innovation and price accessibility, therefore the Commission will insist on the protection of European public health systems, avoiding any change through IPR rules. On the matter of GIs, the Commission has a staunch position, in any case it will not let US goods endanger EU GIs, nor will it allow any problematic brands to enter the market.

As for TPP, compared to TRIPs , it increases the term extensions possible for copyright. Copyright protection would go from 50 years after the death of the author, to 70 years after the death of the author.
TPP wants to introduce a dispute settlement procedure similar to the one already used for domain names, the Uniform Domain-Name Dispute-Resolution. TPP has as criteria for the dispute resolution procedure a: fast and cheap, fair and unbiased, not to demanding method of dispute resolution. TPP adds that this dispute resolution procedure cannot exclude recourse to a court.
The most controversial sections of the IP round of negotiating are:
– the extension of copyright protection, adding significantly to the period of protection
– Accusations of overprotecting DRMs (digital locks). This would oblige multiple countries to completely change their laws. There was particularly criticism of this in Australia and New Zealand, both have specific rules on digital locks that are contrary to TPP.
– The provisions on the misuse of trade secrets could be highly problematic for whistle blowers; the vagueness of the text could endanger freedom of speech and information.
– TPP changes many rules for the internet intermediaries safe harbour regime.
– TPP also implements heavy criminal charges for non-compliance to Copyright laws.

The rights belonging to Copyright aren’t defined the same way in TPP and within the EU.
On one hand, TPP allows authors to authorise or prohibit all reproductions of their work. On the other hand, the 2001/29 InfoSoc Directive affirms the right for authors to receive “appropriate” financial rewards for the use of their work.

1) For us, the most important topics are those on modification of intellectual property rights to generate growth and jobs and benefit businesses. Intellectual property rights allows to protect individuals and firms that improve, brand and create new products or services, preventing unauthorized use of inventions and allowing to make money from their efforts and investments. Protecting innovation and creativity drive economic growth and create jobs and that is very important in our societies. This is why, according to what we know, the European Union and the United States would create a standard that can then be extended to other countries of the world. There are also some disputes between EU and USA about intellectual property rights which will be solved with de TTIP.

2) First, what worries the opponents of TTIP is the lack of transparency because nobody knows precisely what the EU and the United States are trying to negotiate.
The press cites in particular fears about the rules in matters of food or health because these could become the same as in the US.
Indeed, in uthe USA, pesticide use is very common while in Europe, the use is more strict.
In addition, for cosmetics, over 1000 substances are banned in Europe while in the US, only about ten.
The fear is that Europe must adapt to US standards and thus reduce its protections systems.
More particularly, the TTIP focuses on procedures for granting new patents. In fact, the pharmaceutical industry wants to increase its intellectual property rights, which implies a lengthening of drugs patents. Therefore, some areas, such as social security, are likely to be attacked.
Furthermore, copyright is also the subject of fears because the level of public protection could be restricted.
On all these issues, the commission, in his presentation entitled « Insie TTIP », doses not solves all the issues raised in the press but is interested in a specific point concerning Intellectual Property Rights. This is the protection of indications geographique. Indeed, the EU and the United States proceed from different way about it : the EU treats the original names as geographical indications while the United States does no protect only not all the names. Therefore, the commission talks about it and specifies that, with the TTIP, there is a desire to improve the US system by an agreed list of EU GIs.

1) The rule means that when a product is covered by an IP right and has been sold by the owner, the IP right is “ exhausted” and can’t be exercised by the owner. In the Resource Book on TRIPS and Development it is clearly mentioned “once the rights holder has been able to obtain an economic return from the first sale or placing on the market, the purchaser or transferee of the good or service is entitled to use and dispose of it without further restriction”. There is clearly a link with the international trade law but I think exhaustion is typical to IP matter.

2) Cybersquatting, that we also call “domain squatting”, consists in registering, trafficking or using “Internet domain name” to gain profit from the trademark of someone else and not in a good faith. The cybersquatter then tries to sell it to the person, company, who owns a trademark contained within the name but at a major price.
As far as TTP is concerned, the dispute settlement procedure is describe in an article “Article QQ.C.12: {Domain Name Cybersquatting}
1. In connection with each Party’s system for the management of its country-code top- level domain (ccTLD) domain names, the following shall be available:
1. (a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation; and
2. (b) online public access to a reliable and accurate database of contact information concerning domain-name registrants; in accordance with each Party’s laws and, where applicable, relevant administrator policies regarding protection of privacy and personal data.
2. In connection with each Party’s system for the management of ccTLD domain names, appropriate remedies, shall be available, at least in cases where a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trademark ”.
ADR means Alternative Dispute Resolution it’s a process that allows the disagreeing parties to come to an agreement and without going to litigation. It can take different forms like negotiations, mediations, etc. In this case, as it’s said in the Article QQ.C.12, the dispute settlement must respect the UDNDR and therefor when someone chooses a domain name, he has to “represent and warrant” to be sure that the name he choose “will not infringe upon or otherwise violate the rights of any third party”. He also has to agree in the participation of an arbitration proceeding if a third party affirms such a claim.

3) There were 3 controversial issues summarized as following :
First, there were fears that TTIP could re-introduce the Anti-Counterfeiting Trade Agreement (ACTA) which was rejected by the European Parliament in 2012. Indeed, ACTA was meant reduce international intellectual property right violations between Europe, United States and other key trade partners. EU response on this topic was clear : EU and US have already detailed and effective rules to protect the intellectual property whereas other countries that planned to enter the ACTA didn’t. That’s why EU will not discuss on topics like penal enforcement or internet service provides liability.
Secondly, the rules adopted by TTIP on the IP could increase the prices on pharmaceutical products. EU is expecting TTIP to give access to innovative medicines on both sides of the Atlantic and IP is more focused on giving to industry incentives for research and development. So, it’s important to understand that TTIP will not have an impact on national government’s decision-making powers for pricing.
Last concerns was on geographical indications. Indeed, the current GI system is protecting farmers and food producers from the importation of products that could attack our intellectual property. The current fear is that TTIP could weaken our GI system. According to EU, importations using protecting name would not be able to enter the market.

4) Yes, there will be. For the moment, geographical indications are strictly protected in European Union but not in the United States. “Many food and drink products from the EU are produced, processed or prepared in specific regions. They have ‘names of origin’ linked to where they’re from”. (p. 45). With TTIP, US will protect an agreed list of EU GIs and will “enforce those rules effectively” (p. 46).
There will be other changes in addition to this and existing rules and practice in thoses countries: “aspects of copyright that the EU already protects, such as: resale rights for visual artists; public performance and broadcasting rights” (p. 46).
According to “TTIP and regulation: an overview” document of European Commission (February 2015), “the aim is to build bridges between the two systems. By working together early on in the process, the EU and US authorities can share expertise and ideas on the best way to tackle issues requiring regulatory action. This should lead to regulation that is more compatible but which can also be more effective and efficient. That would mean fewer barriers to trade, better quality regulation and more effective enforcement” (p. 8).
There will actually be more exchanges, transparancy and closer cooperation betwween US and EU. And it will be seen by sanitary and phytosanitary measures (to protect people’s health), rules on chemicals (prioritising them for assessment, classifying, identifying, sharing data…), and other regulations on cosmetics, engineering, medical devices, motor vehicles, pharmaceuticals, Services and textiles and clothing.

5) In 2001/29 InfoSoc directive, there is an exception about reproduction right that is not in TPP. TPP Induces new provisions about the internet copyright.
There are three mains rights provided by this directive: Reproduction right, communication right and distribution right.
A lot of this provisions produce controversy and increasingly poeple are opposed TPP regarded to intelectual property provisions.
According InfoSoc directive, there is a compulsory exception for the reproduction right. This exception provided by the fifth article of 2001/29 InfoSoc directive.
Moreover, other exceptions could be according by the member state. This kind of exceptions are not provided by the TPP.
In TPP, there is a democratic problem concerning the censor of some internet informations. Internet freedom threatened in TPP intelectual property provisions.
There are three mains problem highlighted by WikiLeaks release : 20-year copyright term extensions, new rules that would induce ISPs to block websites, and criminal penalties for the circumvention of digital locks. This problem are not present in the InfoSoc directive. In opposite to TPP, 2001/29 InfoSoc directive doesn’t limit freedom and right of people.
Rights of information society are more important in this directive.

1. By reading those pages, could you identify the most important topic according to the Commission? Can you explain the issue?

The main IPR-related issue discussed by the Commission concerns geographical indications (GIs). Indeed, names of origins are granted a different protection in the USA and in the EU. In the USA, they benefit from trademark protection whereas in the EU, they are only protected by GIs. As a consequence, the import of American products in Europe may infringe local intellectual property rights and the EU citizens don’t want to concede on this point, for GIs protect farmers and foods producers and this would further worsen their condition.
We can notice than EU producers experience a certain loss (essentially a loss in their income) by reason of the exportation of their products in the USA, given that the American consumers won’t have any knowledge of the real origin of the goods they are buying and consuming.

2. Does the Commission respond to the fears expressed in the press on the IP chapter of TTIP? To prepare your response, you should compare the view expressed by the Commission with what appears in the online press and on the webpages of the TTIP opponents.

The Commission actually addresses those fears, but only to a certain extent.
Firstly, one might actually think that the implementation of the TTIP will engender further difficulties for lower classes to have access to medication at a price that best fits their budget constraint. The idea is that once some companies are entitled to stronger intellectual property rights, it will keep other firms from producing the same products.
The Commission first underlines that both the EU and the USA already have effective rules protecting IPR, and those rules strike a perfect balance as they allow companies to remain highly competitive and profit from their researches, in addition to allowing patients to have access to some new medicines. The Commission stresses that nothing will be signed that will cause this balance to be dented or the EU health costs to be increased.

Then, some concern arose linked to the ACTA (Anti-Counterfeiting Trade Agreement), more precisely, to the fact that some rules that were first rejected by the European Parliament could now be introduced trough the backdoor by the TTIP. To that, the Commission responds that both the EU and USA have already voted detailed enforcement provisions so they won’t negotiate on hot topics such as penal enforcement or Internet service provider liability.

However, there is a fear that the TTIP would weaken the existing system that ensures an IP protection to EU farmers and food producers and prevents any type of import that could infringe on their IPR.
Indeed, this ultimate concern arose by detractors is that “such clauses allow big business to sue governments enabling corporate interests to challenge the sovereign will of democracy”. That is to say that American investors, whose investments might be jeopardized by EU measures, would be enabled to sue EU Member States in front of courts. The Member States’ wrong or fault would then be that they adopted measures that are yet protective of the citizen, the worker, the producer and the environment generally speaking, but that also happen to form a barrier to American investments.
We can deplore that the Commission didn’t really address this concern, while citizens could be directly affected and Member States could be subject to fines by the newly constituted tribunal.

1. Does the rule on exhaustion of IP deviate from the existing rule in international trade law (TRIPs)?

The TRIPs does not address the issue of IPRs exhaustion. Hence, some countries, signatories of the TRIPs do recognize international exhaustion whereas some others do not. Likewise, while the TPP, more specifically its Article QQ.A.11, discusses the issue of exhaustion, it does not provide for an international principle about the matter. In fact, every country remain free to set up the conditions according to which exhaustion applies.
The rule on exhaustion of IP thus does not deviate from the existing rule in international law, but rather from the different national legal systems.

2. What is the dispute settlement procedure imposed for domain name cybersquatting? Can you very briefly explain this ADR system?

According to Article QQ.C.12, the dispute settlement in question should present three characteristics : it should be quick, fair and equitable as well as not burdensome.
In fact, this alternative dispute resolution system should be based on the Uniform Domain-Name Dispute-Resolution Policy (URDP) which is a form of conciliation procedure aimed at resolving domain names disputes. The UDRP is compulsory because when registering a domain name, the registrar must accept a clause which specifically sets up that any claim related to cybersquatting will be settled according to the UDRP. In practice, the UDRP proceeding usually lasts about fourteen days, where an impartial panel decides the case on the basis of the written statements of the parties. Moreover, the complaint filed must meet procedural and substantive requirements provided by the Internet Corporation for Assigned Names and Numbers (ICANN) to be receivable. Hence, the ADR system discussed by the TTP should allow to avoid court litigation to resolve cybersquatting.
Cybersquatting refers to the situation where an individual registers a domain name, using a name which is protected under the trademark of another individual, thus blocking the latter from the possibility to use his trademarked name as a domain name. Through the ADR procedure, trademark holders who believe that their trademark right is being infringed can thus initiate proceedings.

3. What were the most controversial issues during the negotiation of the IP chapter? You should consult the online coverage by the press and dedicated websites to respond to this question. The openmedia.ca page is only one reference among others to rely on. What do you find in the TPP text on those issues?

During negotiations, the bigger issue was the lack of transparency. At that time, citizens did not have access to the text being written, only big companies had.

This leads us to the second big issue, namely the empowerment of companies. Thanks to having a prior access to the texts, big companies could, trough lobbying, influence the outcome of the redaction of the TPP.

Another big concern was digital citizens and free expression: would the giant media conglomerates respect those (which, because of the lobbying strategy, was difficult to believe) ? There was also the issue of pharmaceutical patents and digital innovation.

Now that the text has been adopted, more concrete issues appeared : firstly, adapting their national laws to the new TPP regulations will require great spending for governments. As to illustrate, we can think of the new delays regulating the copyrights. US negotiators were pushing for the adoption of copyright measures far more restrictive than currently required by international treaties. Countries will have to first expand copyright terms. Indeed, the TPP could extend copyright term protections from life of the author + 50 years, to life of the author + 70 years for works created by individuals, and either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).
As for the pharmaceutical patents, the TPP focuses on protecting intellectual property to the detriment of efforts to provide access to affordable medicine in the developing world. This does not only concern developing countries, since the TPP would not be flexible enough to accommodate existing non-discriminatory drug reimbursement programs and the diverse health systems of member countries. About the digital innovation : the text of the TPP threatens to diminish data privacy and induce Internet Service Providers (ISPs) to block and censor websites.

4. Is there an extension of copyright protection which will result in global regulatory convergence?

As we said in question 3, countries will have to first expand copyright terms. The TPP could extend copyright term protections from life of the author + 50 years, to life of the author + 70 years for works created by individuals, and either 95 years after publication or 120 years after creation for corporate owned works.As an illustration, those changes would require countries like New Zealand to completely rewrite its innovative 2008 Copyright law, as well as override Australia’s exclusions regime for region-coding on movies on DVDs, video games, and players, and for embedded software in devices that restrict access to goods and services for the device.

In short, countries would have to abandon any efforts to learn from the mistakes of the United States and its experience with the DMCA (Digital Millennium Copyright Act (wikipedia) : a United States copyright law that implements two 1996 treaties of the WIPO). They would thus have to adopt many of the controversial aspects of U.S. copyright law, however the transport is not entirely done : the TPP’s IP chapter does not export the limitations and exceptions in the U.S. copyright regime. The point is that those limitations have enabled freedom of expression and technological innovation in the United States and this raises serious concerns about other countries’ sovereignty and the ability of national governments to set laws and policies that meet their domestic priorities.

5. Are the rights belonging to copyright defined in the same way as in Europe (compare with the 2001/29 InfoSoc Directive)?

In the TTP, rights related to Copyright, namely the right of reproduction, right of communication to the public, right of distribution, and the no hierarchy rule, are not defined in the same way as in the 2001/29 InfoSoc Directive.
In fact, through the TPP, we are given proper definitions of those rights and they are actually named in the related articles (Articles QQ.G.1-4) whereas the Infosoc Directive mentions and names those rights in its table of content but when reading the related articles (Articles 2, 3 and 4), what we find is the mere principe underlying those rights, they are not defined as such. The directive stresses how important it is to regulate some IP features without giving any definition.

Extra sources:
https://www.youtube.com/watch?v=p3KlrfjcjV4
https://www.eff.org/issues/tpp
https://en.wikipedia.org/wiki/Trans-Pacific_Partnership_intellectual_property_provisions#Patents_and_cost_of_medicine
https://www.eff.org/issues/tpp

1) Could you identify the most important topic according to the Commission? Can you explain the issue?

According to the commission, the main goal is to help bring innovative products and services more quickly to European and US consumers. ”Intellectual property rights (IPR) reward individuals and firms that innovate or put their creativity to work”. If we don’t reward people for their creativity and don’t protect them from misuse of their creativity, they will stop sharing.

In particular, the Commission emphasizes the importance of the” Geographical indications”. A lot of products have ‘names of origin’ linked to where they’re from (ex: Grappa from Italy). But Europe and US don’t protect them in the same way. In Europe, these products are protected as Geographical indications, in opposite to US where they are protected as trademarks. But many European names aren’t protected. US exclude from the scope of agreement some products.

Commission wants to make an agreement with the US on shared principles, binding commitments and cooperation between governments and stakeholders on areas where they share interests.

2) Does the Commission respond to the fears expressed in the press on the IP chapter of TTIP?

Many fears are linked to this TTIP. Germany, who mainly depends from exports, should be in favor of the TTIP because of the tariffs cuts, but on the other hand, establishing an arbitration system could create governments’ fears to be suited for adopting restrictive measures protecting consumers and environment.

Another fear concerns the ACTA (Anti-Counterfeiting Trade Agreement). The ACTA was rejected by the European Parliament. Some organizations think that the TTIP may try to introduce it back through the back door.

Health advocacy organizations also fear an increase in pharmaceutical products prices due to stricter intellectual property rights that the agreement could impose. The Commission wishes to keep a balance between innovations and affordable medicines.

Finally, the European system of protected designations covers a long list of food products and alcohols but this system is too much large for US. Commission says they won’t cut the protection they currently offer to Geographical indications in Europe. The Commission tries to reduce opponents’ fears but there is no proof that was has been announced will be respected.

3) Does the rule on exhaustion of IP deviate from the existing rule in international trade law (TRIPs)?

The rule of exhaustion of intellectual property deviates from the existing rule in international trade law but not totally. According to articles QQ.A.5 and QQ.A.7 of the TPP, a party “can” but is not obliged because “each party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice”. Article QQ.A.11 provides that “nothing in this Agreement prevents a Party from determining whether and under what conditions the exhaustion of intellectual property rights applies under its legal system”.

4) What is the dispute settlement procedure imposed for domain name cybersquatting? Can you very briefly explain this ADR system?

They had developed an extrajudicial procedure for cybersquatting: the Uniform Domain-Name Dispute-Resolution Policy. This out-of-settlement procedure is at a low cost and the decision is the registry’s discretion. It’s designed to resolve disputes expeditiously and by a fair and equitable way (cf. Art. QQ.C.12 TPP)

5) What were the most controversial issues during the negotiation of the IP chapter?

Europe and US tried to find a compromise on the level of protection of intellectual property. They wanted to harmonize their legislations this topic. One of the most controversial issues during the negotiation concerned the “Geographical indications”. As we said few lines above, the limitation of these protected products is more restrictive in US (see articles QQ.D.1 and seq of TPP)

6) Is there an extension of copyright protection which will result in global regulatory convergence?

According to the article QQ.A.8 of the TPP, each Party to the TPP shall affirm that it has ratified nine international agreements concerning the intellectual property. Thereby, ratify the TPP involves that each party has to accept the same international IP agreements. Consequently, it could leads to a global regulatory convergence.

7) Are the rights belonging to copyright defined in the same way as in Europe (compare with the 2001/29 InfoSoc Directive)?

If we compare the article QQ.G.1 and seq of TPP and the 2001/29 InfoSoc directive, we can clearly see the Directive is more protective than the TPP. For instance, broadcasting organizations aren’t protected by the TPP whereas they are protected by the article 2, c) of the 2001/29 InfoSoc directive.

Olivia BAZI, Justine CODUTTI, Axelle DERYCKER, Michael ENGELKING, Simon SHIHAB, Gerald SOETHOUDT

Marie Rygaert, Christie Kafrouni, Nathalie De Mol and Julie Mattelaer

About the TTIP

The Transatlantic Trade and Investment Partnership, most commonly called the TTIP, is currently being negotiated (since 2013) between Europe and the United States. If negotiations come to an end, this partnership would create the largest free-trade zone in the world.

1° Based on the text “Inside TTIP” it seems the most important topic according to the Commission is the removal of regulatory barriers, which would considerably facilitate the importation and exportation of goods and services between the two continents.
It might also be the topic that has caused the biggest discussions. If you do researches on the internet about the TTIP, you can easily understand this topic is very controversial and many actions are being taken against it, such as the signature of a petition. As an example, critics are worried the quality of our food in Europe is going to be diametrically different, meaning the quality is going to be diminished.

In its presentation, the European Commission explains that the European Union encounters difficulties when it comes to exporting their goods and services to the United States, due most notably to the US regulations to which European firms must absolutely comply. It is time consuming as well as very costly, especially for smaller business with smaller budgets.

This is why, to eliminate this barrier, the TTIP aims at a regulatory cooperation. In other words, it wants the European Union and the Union States to work hand in hand on their regulations, instead of having different rules and regulations which makes it challenging to import goods from one continent to the other. This new regulatory cooperation would include the two parties to work together, consult each other and also exchange their information. This collaboration would ensure each party can safeguard its interests.

This issue is very controversial, maybe due to the fact it can change many things in our daily life, such as the food we eat. If Europe and the United States start working together to create regulations, how can we sure Europe won’t lessen its standards and start importing the unpopular American “malbouffe” ? We can ask ourselves how this new trade-zone is going to affect the food we eat and, therefore, our health ?

But it’s not the only contentious matter. Some believe this free-trade agreement is a danger to our democracy. If the European Union decides that it doesn’t want any OGM food in our food industry, this new rule will have to be accepted by the United States government and also different businesses groups as well. Businesses groups are going to have important powers, because, for example, they’ll be able to make proposals. Thus, Europe will lost its ability to pass any regulations they want because now everything will be about cooperation and negotiation. If the United States doesn’t want OGM-free food, the two powers will have to find a compromise which might not be the best option for the consumers or even the environment, but will rather benefit big companies.

Naturally, this agreement is about trade and creating a zone where import/export between the two super powers is made easier, but if you look closer, it’s all about power and money. Citizen’s interests are not taken into account, and this is why, among other things, the TTIP, and most precisely, the regulatory cooperation it induces, is the source of such big controversies.
Obviously, the Commission is aware of these problems (namely lower protection or principles or regulation) but it strongly believes the TTIP won’t change the rules already set out in the European treaties or change (negatively) the level of protection we currently have.

Sources : http://www.theguardian.com/business/2015/oct/18/prospect-ttip-deal-undermining-eu-food-standards-gmos
http://trade.ec.europa.eu/doclib/docs/2014/may/tradoc_152462.pdf
http://corporateeurope.org/international-trade/2015/04/regulatory-cooperation-ttip-united-deregulation
http://www.theguardian.com/business/2015/aug/03/ttip-what-why-angry-transatlantic-trade-investment-partnership-guide

2° A few critics have been made due to some controversial issues on the IP chapter by the press.

The text Inside TTIP mentions three of them :

-ACTA (anti-counterfeiting trade agreement) : it is a multinational treaty establishing standards for intellectual property rights. (https://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement). There is a lot of critics saying that the commission is trying to reintroduce some goals by the TTIP agreement that could not be reached by ACTA.
These two acts might be quiet similar. Let’s mention an example :
One of the critics about it is that just as ACTA, the TTIP has been influenced by business lobbies. « There is a major risk that the agreement will be heavily tilted towards economic interests of the most powerful at the expense of the protection of people and the environment »
(http://ttip2015.eu/blog-detail/blog/Max%20Andersson%20TTIP%20ACTA.html).
The commission responds to all the critics by saying that there is an « enforcement provisions mechanism » detailed in the TTIP, whereas there wasn’t in ACTA.

-Higher prices : critics have been made saying that TTIP will lead pharmaceutical products prices to increase. A response has been formulated by Lilly David ricks on the following webpage : https://lillypad.eu/entry.php?e=2435. she answered to this critic saying that « it is important to underscore that TTIP will not impact national governments’ decision-making powers for pricing of pharmaceuticals. The EU and US have high standards of IP protections, though they are not exactly the same ».

-Geographical indications : There is the fear that TTIP may weaken the actual system protecting farmers and food producers. The commission responds to this by saying they will never agree to stop this protection. But this response doesn’t seem to be quite enough. Although it gives reassurance regarding the imports to Europe, it avoids the question of the protection of European exports. The food and wine markets in the US are huge, and it would be a big commercial advantage for European producers if they could get their products to be protected in these US markets. That’s where a real change could be felt. It feels as though the EU would not be winning much, as far as GIs are concerned, with the TTIP, if they can only guarantee that things won’t get worse than they were.
Another point is that all the negotiations for the TTIP are done in secret, and this doesn’t make people comfortable either. It’s hard to know for sure what is done or not, what is negotiated or not, what will change and what won’t, …
So we don’t feel that the Commission has really succeeded in reassuring people. – https://www.eff.org/deeplinks/2014/10/eu-us-trade-negotiations-continue-shutting-out-public-when-will-they-learn

About the TPP

1° Does the rule on exhaustion of IP deviate from the existing rule in international trade law ?

The exhaustion of IP rights relates to a limit of this law. Basically, when an IP owner (of a patent, a copyright or a trademark) has accepted to put his right on the European market, he immediately loses his right to block the importation of the specific good. In other words, this exhaustion doctrine is a compromise between the European free movement of good (and services) and intellectual property.

Sources: http://www.hugheshubbard.com/ArticleDocuments/Exhaustion_IP_Rights_2003.pdf

2° What is the dispute settlement procedure imposed for domain name cybersquatting ? Can you very briefly explain the ADR system ?

First of all, domain name cybersquatting is about buying a domain name which has the same name as an already existing business but before this business actually creates its own website. Thus, the real owner has no possibility to have a website under his brand name.
The TPP, in an effort to reduce this cybersquatting, drafted Article QQ.C.12. Each party to the treaty (for example the United States or Australia) must put in a place, in their national law, an appropriate procedure based on the UDRP or a procedure which needs to fulfil four specific conditions.
Besides, the countries need to make available “an online access to a database of contact information concerning domain-name registrants”.
This article is pretty imprecise and offers to the parties only mere guidelines.

ADR stands for Alternative Dispute Resolution. The purpose of this system was to fight the ever-growing problem of cybersquatting, when it was created in 1999.
Basically, ADR relates to all the different methods of resolving disputes other than the traditional resolution. For instance, we’re talking about arbitration or mediation. This way of resolving disputes is cheaper, faster and easier.

Sources : http://www.nolo.com/legal-encyclopedia/cybersquatting-what-what-can-be-29778.html
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1444&context=iplj

3° The most controversial issues during the negotiations of the IP chapter were :

• Exclusive rights over test data
• Patent linkage
• Patent term extensions
• Evergreening patents
• Copyright terms
• Technological protection measures
• Internet service provider (ISP) liability
• Criminal enforcement
• Boarder measures

Even though the list is not exhaustive, we can consider these topics are being the most important and controversial.

Source : http://keionline.org/node/1794

4° According to Article Q.Q.G.6., copyright terms shall be “not less than the life of the author and 70 years after the author’s death”.
The TPP aims at extending the copyright terms way beyond the requirements and the standards you find in the Berne Convention and TRIPS, which require the copyright lasts during the author’s life after fifty years after his death. For a long time, this was the standard in the United States. Now, with this new treaty, the idea is that the copyright should last during the whole author’s life and seventy years after his death. Thus, the treaty is increasing the term by twenty years.
Actually, the pressures are coming from the United States. They want to protect some important work that are going to fall into the public domain at the end of their copyright term if nothing is changed in the copyright legislation. It’s all about business and money, of course and they’re taking examples on countries such as Australia, Morocco or Singapore who have already agreed to life-plus-seventy copyright term.
Despite many opponents, the United States have succeeded and this new term has been included in the TPP. As a consequence, it will result in a global regulatory convergence because countries such as Canada, Japan or New Zealand are now forced to enact such a new term in their national legislations.

Sources : https://www.eff.org/files/filenode/copyrightterms_fnl.pdf
http://www.ip-watch.org/2015/03/23/tpps-copyright-term-benefits-us-burdens-others/

5° Let’s first have a look at the objectives of each of these treaties :

-Article QQ.A.X of the TTP tells us that property rights are a way to “contribute to the promotion of technological innovation and to the transfer and dissemination of technology”. (https://wikileaks.org/tpp-ip3/WikiLeaks-TPP-IP-Chapter/WikiLeaks-TPP-IP-Chapter-051015.pdf)

– Whereas article 4 of the 2001/29 InfoSoc Directive promotes copyrights « through an increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation ». (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML).

As we can see in both articles, whether it is in Europe (in the 2001/29 InfoSoc Directive or in the TTIP), or in the Pacific with the TTP treaty, both aim to further the economy by encouraging investment and innovation. The harmonization of Intellectual property rights are used for the same objectives, to achieve the same values.

Now let’s see if both treaties use the same ways to achieve their objectives. If so, we will conclude that both definitions of intellectual property rights are quiet the similar in both treaties.

What are their contents ?

Europe aims to reach its objectives concerning intellectual property rights by « creating a general and flexible legal framework at Community level in order to foster the development of the information society in Europe » (art. 2 of the 2001/29 InfoSoc Directive).
The same need for transparency is present in the TTP : IP « facilitate the diffusion of information, knowledge, technology, culture and the arts” (Art. QQ.A.Z of the TTP).

As we can see, these two treaties set some value that countries have to achieve but give some freedom on the way of achieving their obligation about IP.
Article QQ.A.5 of the TTP says that “Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice”.
What about the second European treaty? We have to know that it is in the nature of a directive to give some freedom for the way to apply the obligations.

As a conclusion, we can say that the rights belonging to copyright in the TTP are defined in the same way as in Europe.

Sources :
• https://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement
• (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML).
• https://wikileaks.org/tpp-ip3/WikiLeaks-TPP-IP-Chapter/WikiLeaks-TPP-IP-Chapter-051015.pdf
• http://ttip2015.eu/blog-detail/blog/Max%20Andersson%20TTIP%20ACTA.html
• https://lillypad.eu/entry.php?e=2435

1.The first important goal of the TTIP is to « raise awareness of the role of IPR in encouraging innovation and creativity ». In fact, IPR such as patents are important for the stimulation of innovation. They protect the value of inventions and investments related to this. Furthermore, the publication of patent’s information’s is helpful for new research and developments. Consequently, firms are interested in using IPR optimally during the development and the launch of new products.

 The second important goal of the TTIP is to « protect the people and firms that come up with new ideas and use them to make high-quality products by enforcing IPR rules in a balanced way ».  Indeed, people are more likely to launch new ideas in the market if they know that their ideas are correctly protected. For example, it will prohibit industries producing foodstuffs that are originally produced in specific regions to use the name used by these local producers. Therefore, an agreed list of EU Gls contain the names of the protected products. It will certainly encourage new producers to put their products on the market because they know this will ensure their visibility.

2. The press expresses its fear about products with names linked to the specific regions where they are produced in a particular way. We already know that this kind of products are protected by Gl’s and the press says that the US are defending the free use of this names without consideration of the production’s place. This behavior may lead to the decrease of the foodstuff’s quality. This fear is also expressed by “ATTAC”, a French organization defending solidarity between people and nature protection.  However, we already saw that the commission planned a list of the products protected by Gl’s. The commission does not answer to all the concerns expressed by the press. For example, those linked to cosmetics. We can observe that the TTIP would involve a decrease of the European legislation’s care about the production of this kind of goods to reach the US level. Indeed, the spokesperson of Test Achats Belgique, Julie Frère said that there are 1328 substances that are prohibited in the cosmetic industry against 11 in the USA. The protection of the consumer is a big deal and the commission doesn’t seem to highlight this problematic.

1.Yes, it does. The rule on exhaustion of IP is actually a limitation of the IP rights. The principle is used when someone wants to resell, rent or lend a product that he bought from the IP-owner of the product.
In the TPP, when a WTO member has to justify a limitation on the exclusive rights of a patent, he has to use the Article 30 or 31 of the TRIPS.

2. Cybersquatting : when there is bad faith registration of another’s trademark name in order to gain commercial advantage.
For the trademark holder to buy back his rights,an open international process of consultations concerning possible practices and procédures for preventing and resolving domain name disputes has been created.
The UDRP procedure is designed for domain name disputes. There are 8 stages in the UDRP prodecdure. The first stage is : the filing of the Complaint. The second stage is the Complaint compliance review. Then, there is the commencement of the administrative proceeding. The fourth stage is the process filing. The fifth stage is the Appointment of the panel. The sixth stage is the panel’s decision. The seventh stage is the decision’s notification. The last stage is the implementation of the decision.

3. The first controversial issue deals with ACTA which is the Anti-Counterfeiting Trade Agreement. Some rules in this agreement were similar to the TTIP and Europe tried to adopt it but the European Parliament rejected this treaty. So the issue is about the fact that The TTIP wasn’t rejected but is currently in negotiation. The European Union responded to this reproach by saying that the TTIP doesn’t deal with some topics like penal enforcement and internet service provider liability. So according to the European Union, the countries who didn’t want to join the ACTA can now join the TTIP.
The second sensitive issue is about the higher prices of new pharmaceutical products. The reason of this increase is linked with the IPR related rules. The European Union answered to this by saying that there is a balance between innovations and an affordable medicine that they try to maintain and they cannot change this.

The last issue is about geographical indications. The current system aim to protect farmers and food producers by reducing the importation of products that transgress the intellectual property. The European Union refuted this idea.

The TPP is the forerunner to TTIP.
The TPP, like the TTIP, deals with some controversial issues.
The website openmedia learnt us that the IP Chapter includes: “new provisions that would induce Internet Service Providers to block websites without a court ruling, 20-year copyright term extensions, and new criminal penalties for the circumvention of digital locks”. We can add that the right to privacy of users could be violated.

This Chapter provides the establishment of a legal system which will amend or replace laws of member States. It states also agreement about patents, copyright, trademarks, …
Plus, WikiLeaks revealed that TPP included supranational litigation tribunals which have to be different with sovereign national courts, but which have no human rights safeguards. The TPP IP Chapter provides that these courts can conduct hearings with secret evidence. This « revelation » generated a widespread opposition against TPP. Besides, thousands of people have signed a petition against it.

According to openmedia website, digital rights will be more limited. Specially for Canadians and Americans people. Otherwise, the cost of copyright term extension will be huge for countries like Canada, New Zeeland (untill hundreds of millions per year).

There were also some discussions about the minimum term of protection to the rights for data used for biological drugs. Negotations were difficult, mainly, between USA and Canada.

The US wanted a 12 years’ protection but the negotiators agreed on a shorter term.

In conclusion, TPP has a lot of opponents including WikiLeaks’ Editor-in-Chief Julian Assange. He said : “If instituted, the TPP’s IP regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons. 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.”

4. Yes there is an extension because the ministers from the European Union extended copyright protection for performers and record producers from 50 to 70 years, over the objections of eight countries (Belgium, Czech Republic, Luxembourg, Netherlands, Romania, Slovakia, Slovenia and Sweden). Canada is one of the countries which has now extended the protection of copyright in performances and sound recordings to 70 years after the release date of the sound recording. This new ter mis effective 23 juin 2015.

5. There are also rules for IPR in the U.S which are widely alike to our own. These rules are important because they play a role in the import and export of goods. Indeed, the exchange of several goods and services depend on on intellectual rights.
These rights are also important to encourage innovation, creativity and the development of new ideas.
However, there is a difference in the protection offered. Many EU names aren’t protected by the US laws, so the United States has to improve its system on this point.

1. Could you identify the most important topic according to the Commission? Can you explain the issue?

According to the commission, geographical indications are the most important thing. We need to protect them under the TTIP. It is « a distinctive sign used to identify a product as originating in the territory of a particular country, region or locality where its quality, reputation or other characteristic is linked to its geographical origin » (http://ec.europa.eu/trade/policy/accessing-markets/intellectual-property/geographical-indications/). They are valued in the market place by the consumers.

The European union supports a better protection of geographical indications. The US protects GIs through its trademark regime which means there are a number of differences with the EU approach. This can mislead the consumer.
This is why the European Union is asking the US to improve its regulation about geographical indications.

It means that both countries need to agree on a list of GIs and make sure that those rules are effectively enforce.

2. Does the Commission respond to the fears expressed in the press on the IP chapter of TTIP?

The Commission responds to three main issues in the IP chapter of the TTIP.

First, it speaks about the ACTA : it is a multinational treaty. It had the purpose of establishing international standards for intellectual property rights enforcement. These rules were rejected by the EU Parliament. People feared that it would be let through thanks to the TTIP. The Commission has responded to this fear saying that « both the EU and the US have detailed and effective laws to protect intellectual property. TTIP will not harmonise EU and US laws in this area, but it could enable us to try to resolve some specific IPR issues » (http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/questions-and-answers/).

Some opponents to the TTIP said that this treaty would lead to negatively impact citizen’s access to affordable medicine. (http://ttip2015.eu/blog-detail/blog/id-30-reasons-why-greens-oppose-ttip.html). But the Commission said that the balance between innovation and keeping medicines affordable is too important for the EU. No change would be allowed on this matter.

Finally, it speaks about the geographical indications (see supra). But the Commission has expressed its will to protect GIs.

3. Does the rule on exhaustion of IP deviate from the existing rule in international trade law (TRIPs)?

The new TPP agreement, reached this October 2015, can’t deviate from the existing rule of Trade Related Aspects of Intellectual Property Rights (TRIPs). In fact, according to the article 7 of this treaty, the main objective of the TRIPs is in one hand to provide a full protection to IP holders against the abuses and in another hand contribute to the promotion of technological innovation and to the transfer and dissemination of technology.

Article 8 states that members may adopt measures to protect public health, environment and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development.

According the text, the TPIRs will only provide a protection, and not an exhaustion of IP. The measures adopted in the TPP would limit Internet, which is a free zone to expression. The extension of copyright terms does not lead to a promotion of technological innovation. It only benefit to Multination giants, who want to enforce their IPR for more years. In this case, littlest companies couldn’t evolve and expand. In addition, the news criminal penalties may lead to the creation of a climate of fear for these companies, which will be scared trying innovating.

4. What is the dispute settlement procedure imposed for domain name cybersquatting? Can you very briefly explain this ADR system?
According to article QQ.C.12:{Domain Name Cybersquatting} of the recently released draft of TPP there should be an “an appropriate procedure for the settlement of disputes” which basically implies that it has to be governed according to four principles: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation. Moreover the article requires remedies in case of cybersquatting.
Regarding these requirements an adequate ADR would be the Uniform domain name dispute resolution policy (UDRP). In order to benefit of the protection provided by the UDRP the party has to establish that (UDRP, §4(a)):
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) The registrant has no rights or legitimate interests in respect of the domain name; and (iii) The domain name has been registered and is being used in bad faith.
Basically the procedure starts by filing a complaint, for instance in front of the WIPO-Centre which will lead to the filing of a response by the defendant. The dispute resolution service that has been chosen, will then appoint an administrative panel who is entitled to decide the dispute. The decision of the administrative panel will then be notified to both parties in order to be implemented afterwards .

5. What were the most controversial issues during the negotiation of the IP chapter? You should consult the online coverage by the press and dedicated websites to respond to this question. The openmedia.ca page is only one reference among others to rely on. What do you find in the TPP text on those issues?

The intellectual property provisions have always been a source of controversy, especially in terms of their effects on pharmaceutical patents and digital innovation. Today, we can count two main problems : the Intellectual Property Chapter (which will – see the May 2015 draft of the TPP Intellectual Property Chapter – undoubtedly generate negative repercussion on freedom of expression, right to privacy, due process of law and people’s abilities to innovate) and the lack of transparency («The entire process has shut out multi-stakeholder participation and is shrouded in secrecy »). Currently, U.S. negociators argue to adopt copyright measures extremely more restrictive than normally required by international agreements, such as the ACTA. This would require major modifications to other countries’ copyright laws.

Indeed, these include obligations for countries to : expand copyright terms (that will go way beyond the ones agreed in 1994 enshrined in the TRIPS) ; escalate protections for DRM (aka Digital Locks) wich « will compel signatory nations to enact laws banning circumvention of digital locks (technological protection measures or TPMs) [PDF] that mirror the DMCA and treat violation of the TPM provisions as a separate offense even when no copyright infringement is involved » ; create new threats for journalists and whistleblowers (the text on the misuse of trade secrets is so vague that it risky : « it could be used to enact harsh criminal punishments against anyone who reveals or even accesses information through a “computer system” that is allegedly confidential ») ; enact a « three-step test » language that puts restrictions on fair use (see the US Trade Representative) ; place greater liability on internet intermediaries (« The TPP would force the adoption of the U.S. DMCA Internet intermediaries copyright safe harbor regime in its entirety ») ; adopt heavy criminal sanctions for copyright infringement « that is done without a commercial motivation ». The last one seems to be for us the most shocking because « users could be jailed or hit with debilitating fines over file sharing, and may have their property or domains seized even without a formal complaint from the copyright holder ».
(see https://www.eff.org/issues/tpp)

6. Is there an extension of copyright protection which will result in global regulatory convergence?
There is a 20 years extension of the copyright protection on original works in Canada (from 50 to 70 years). This new regulation of the TTP will, indeed, implement a kind of global regulatory convergence because the 70 years protection rule was already the one that was applied in the US. So, there is an harmonization of the copyright regulation between the US and the members of the TTP.

7. Are the rights belonging to copyright defined in the same way as in Europe (compare with the 2001/29 InfoSoc Directive)?
No, the rights belonging to copyright are not defined in the same way in Europe than they are defined in the TPP.
The IP Chapter of the TPP has perhaps been the most controversial chapter due to its wide-ranging effects on internet services, medicines, publishers, civil liberties and biological patents. “If TPP is ratified, people in the Pacific-Rim countries would have to live by the rules in this leaked text,” said Peter Maybarduk, Public Citizen’s Global Access to Medicines Program Director. “The new monopoly rights for big pharmaceutical firms would compromise access to medicines in TPP countries. The TPP would cost lives.” (https://wikileaks.org/tpp-ip3/)
The rights covered by copyright in the Directive 2001/29 are different to those protected by the IP chapter of the TPP : the objectives of the Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC) are to adapt legislation on copyright and related rights to reflect technological developments and to transpose into Community law the main international obligations arising from the two treaties on copyright and related rights adopted within the framework of the World Intellectual Property Organisation (WIPO) in December 1996. (http://ec.europa.eu/internal_market/copyright/copyright-infso/index_en.htm)

Intellectual Property Law: “TTIP and TPP under scrutiny: how to assess the intellectual property chapter”

Students: Lorena Weyckmans, Edouard Malcourant, Santiago Morales Pacheco and Guillaume Brisbois

TTIP

1. Most important topic according to the Commission and explanation of the issue:

Regarding both articles (“Inside TTIP” and the EU position paper on IPR), one can easily bring out that IPR as incentive for innovation and creativity is the main issue. According to the Commission, those incentives (innovation and creativity) drive sustainable economic growth as, according to them, IPR-intensive goods and services represent 39% of EU GDP (which amounts to 4.7 trillion/year). Therefore, IPR are seen as a way to distribute authentic goods and services that every citizens can benefit, and because of that, they must be strongly protected. By correlation, it also enables the creation of jobs: firms having IPR on their goods and services have secured them and can now afford to expand or to produce more, meaning more workers would be needed. The Commission’s view is thus based on a meritocracy in which only firms and individual that innovate and are creative should be rewarded and protected.

2. Response to the fears expressed by opponents of the TTIP on IPR:

For the NGO “Friends of the Earth”, one of the main problem with IPR is related to agriculture. Indeed, they are concerned that the Geographical Indication (GI), strongly protected at the EU level, would be weakened with the agreement at stake. One has to know that in the US the protection is not as strong, which actually leads to some problems: some products can be sold using an EU GI which in reality they could not beneficiate from (cheese, wine, …). The Commission responds that they will never down the protection already existing and that US products using EU GIs’ would never be able to enter the EU market. That is why in their position paper, they proposed several measures among which a list of protected GI directly incorporated in the agreement, and administrative enforcement for the misuse of GIs’.

Commons Network, a civil society organisation (CSO), concerns are about the “Pharmaceutical Industry wish list” in the TTIP. According to a report of that CSO (“The Transatlantic Trade and Investment Partnership – TTIP: a Civil Society response to the Big Pharma Wish List”), IPR in Europe are already noxious to the access to medicines. Indeed, according to an EU’s inquiry of 2008, the aim of IPR led to the opposite original will: companies would abuse their IPR, hurting innovation and costing European health system billions of euros. The TTIP would aggravate the situation if the Big Pharma wish list is met, because:

a) Changing the regulations on IPR means longer monopolies, higher prices and more new medicines with lower therapeutic values
b) Limiting the pricing and reimbursement policies undermine government policies to organise and contain cost of medicines in their national health system
c) Limiting the transparency of clinical trials is a strategy to neutralize the New EU Clinical Trials Regulation policy, which call of clinical trials disclosure in the name of public safety
d) A global standard setting would harm the third-world countries and the middle class because of what is mentioned above (a), b) and c)): low and middle-income countries will be more harmed because their resources are more constrained

The Commission has, regarding to those arguments, a very evasive and thus weak response to that issue. Indeed, in the “Inside TTIP” document, they state the balance between innovation and keeping medicines affordable is essential to them and that will not change during the agreement. One cannot ignore that those negotiations were held in secret, which gives even less credibility to that statement.
Finally, the EDRI (European Digital Rights, a CSO gathering itself more than 30 other organisations) made allegations about how the TTIP would be a way to implicitly enforce rules that were rejected by the Parliament in the Anti-Counterfeiting Trade Agreement (ACTA) few years ago (see article “EDRI’s Red Lines on TTIP”). According to that organisation, IPR as they are implemented in the controversial agreement, are a way for government to “control, monitor or police online content in order to achieve various political or public policy goals”. As an example, IPR in ACTA could suspend online service providers for an infringement of copyrights, or more explicitly, coerce Internet providers to cut the access to political opponents. According to the CSO, those sanctions made by intermediaries undermine the presumption of innocence and the right to due process of law, just as the proposals in the ACTA. A related concern is also the rules on data protection contained in the TTIP. Indeed, data protection and privacy are fundamental rights under the EU Charter on fundamental rights. Trade negotiations should not, according to that CSO, be discussed in a “trade” agreement.

The EU Commission responded to those fears in a paper called “How much does the TTIP have in common with ACTA?”. They first said that IPR are “only a small part of the agreement” and having in both parties (US and EU) strong IPR infrastructure, it was not necessary to strengthen them even more, therefore it is only a “limited interest”. A similar argument is made against the allegation that ISP (internet service providers) could be held liable for user’s offences (and thus coerce ISP to suspend their connection preventively, which is against the rule of law). According to the Commission, the EU and the US have “efficient rules defining when ISP could be held liable” (most serious crimes and IPR infringements), so there is no risk of the expressed concern. Concerning data protection, the Commission claims that “data flows” are a way to prevent barriers for trade, and would even “increase data protection”. For example, they state that the TTIP would prevent big companies to block competition of smaller companies, keeping the same number when changing operators …). In our view, the Commission contradicts itself when claiming “strengthening IPR” are a “limited interest” when on the other hand they pretend it create jobs and represent 39% of the EU GDP, is essential to protect innovation and their infringement online, leading to the liability of IPS, is put at the same level than the “most serious crime” (i.e, child pornography …).

TTP

1. Does the rule on exhaustion of IP deviate from the existing rule in international trade law (TRIPs)?

Regarding the article 6 of TRIPs it appears this international agreement doesn’t really address the issue of exhaustion. There wasn’t any pre-existing rule of exhaustion in international trade law. The TPP thus settles a new rule about it saying that each party is free to determine “whether and under what conditions the exhaustion of intellectual property rights applies under its legal system”.

2. What is the dispute settlement procedure imposed for domain name cybersquatting? Can you very briefly explain this ADR system?

The ADR system chosen to settle dispute procedure for domain name cybersquatting is that, in connection with the system already in place in each party’s system, some guidelines have to be respected. These guideline in (a) and (b) are basically saying the procedure should be fast, not expensive, light (not burdensome) and shouldn’t preclude any resort to court litigation meaning the settling procedure is aimed to be different from a court settlement: it is fast, light, cheap and isn’t the last resort the dispute can still get more serious. Also the TPP adds that an “online public access to a reliable and accurate database of contact information concerning domain-name registrants” should be available.

3. What were the most controversial issues during the negotiation of the IP chapter? You should consult the online coverage by the press and dedicated websites to respond to this question. The openmedia.ca page is only one reference among others to rely on. What do you find in the TPP text on those issues?

First of all, the public is going nuts about the secrecy of these negotiations during a century of information in which everyone has access to everything politicians have said. The famous organization Avaast launched a petition for more transparency also claiming it was against any limitation of the Parties’ sovereignty in their own legal system. About Intellectual Property issue, another organization pointed out that the treaty was an attempt at Internet censorship and suppression of freedom on the web, joining Avaast by saying the secrecy of the negotiations without any populations’ participation is antidemocratic. Still about IPR, organizations and people are critical about the TPP’s impact on the cost of medicine, making them less affordable. American and European populations are concerned by different points of the TPP. But both population point out that corporations seem to win at every turn at the expense of working people, making the wealthiest wealthier and disrespecting our resolutions about environment and climate.
Always demonizing TPP, the newspaper “Le monde diplomatique” qualifying the treaty of “a typhoon threatening Europeans” wrote “Food safety, toxicity standards, Medicare drug prices, the Net freedom, protection of privacy, energy, culture, copyright , natural resources, vocational training, public facilities, immigration: not an area of public interest which passes under the gauntlet of institutionalized free trade. “. Media and people are harsh with the TPP.

4. Is there an extension of copyright protection which will result in global regulatory convergence?

Yes, the TPP wants to obtain a global regulatory convergence about the extension of copyright. The copyright protection already existed as an extension of copyright post mortem that can vary among countries. The TPP settles the calculation to 70 years after the author’s death and tries to coordinate the different basis taken among the varying parties.

5. Are the rights belonging to copyright defined in the same way as in Europe (compare with the 2001/29 InfoSoc Directive)?

In EU law, copyright law consists of a number of directives that member states had the obligation to enact in their own legal system in addition to their existing system which is more or less the same work that the TPP is doing by trying to harmonize international copyright law. About the content of the TPP, the EFF (Electronic Frontier Foundation, https://www.eff.org/issues/tpp ) points out that for US copyright law the treaty is bringing more restrictive terms.
Even though the Copyright directive in EU gave the member state a great freedom of transposition the directive has been perceived as a success in the copyright industry. The first articles (1-4) contain definitions while 5 and 6 are about exceptions, limitations and legal protections. The definitions given in these articles are clearly derived from international copyright law like the WIPO Copyright Treaty.
________________________________________