The United States’ Demands for Intellectual Property Enforcement in the Trans-Pacific Partnership Agreement and Impacts for Developing Countries

Abstract

The United States proposal for the Trans-Pacific Partnership Agreement (TPP) includes many demands that will increase intellectual property rights for rightholders. The leaked text reveals that the United States seeks to introduce numerous measures that go well beyond the requirements of the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property (TRIPS), known as TRIPS-plus provisions. Some of the areas of concern include the provisions on intellectual property enforcement. The TPP currently includes eleven negotiating parties of vastly different economic backgrounds: the United States, Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. Other countries, like Thailand and Japan have been rumored to be the next to join, and the agreement is intended to eventually cover the entire Asia-Pacific region, including least developed countries like Laos or Myanmar.Intellectual property systems must provide appropriate balance and important development concerns are affected by intellectual property rules. The high levels of intellectual property protection and enforcement proposed by the United States can create unnecessary barriers to progress and development. Leaks of the United States proposal reveal not only efforts to increase the rights of rightholders without sufficient safeguards to protect the public interest through substantive copyright or patent provisions, but also through increases in the minimum levels of enforcement. The enforcement provisions work in tandem with substantive copyright and patent provisions to tilt the balance of the intellectual property system in favor of rightholders, at the expense of users and consumers. Among other issues, the proposed enforcement provisions would impact access to medicines and access to medical technologies. The provisions could require countries to use scarce resources to investigate and prosecute intellectual property infringement despite the fact that intellectual property rights are private rights. Such use of government resources is costly not only for developing countries, but also for developed countries.This examines the five articles comprising the United States proposals for enforcement of intellectual property rights in the TPP and potential implications for developing countries. Many of the proposals by the United States in the TPP intrude on the policy space reserved for states to pursue balanced intellectual property systems and determine the most efficient methods for enforcement in light of their domestic situation. As a WTO panel recognized, “differences among Members’ respective legal systems and practices tend to be more important in the area of enforcement” and the TRIPS-plus measures proposed by the United States with respect to enforcement could create particular problems for developing countries. The areas of enforcement that are discussed include: 1) civil and administrative procedures and remedies, 2) provisional measures, 3) special requirements related to border enforcement, 4) criminal enforcement, and 5) special measures relating to enforcement in the digital environment.