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USITC’ TPPA likely impact assessment: intellectual property rights

In accordance with section 105(c) of the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, this report, by the U.S. International Trade Commission (Commission or USITC), assesses the likely effects of the Trans-Pacific Partnership Agreement (TPP, TPP Agreement, or the agreement) on the U.S. economy as a whole and on specific industry sectors.

Full and effective implementation and enforcement of the provisions of the TPP’s intellectual property chapter would likely benefit U.S. industries that rely on trademarks, patents, copyrights, trade secrets, and other intellectual property rights (IPR or IPRs).

With regard to regulatory changes, the chapter incorporates IPR provisions already in force in other trade agreements—in particular, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and U.S. FTAs with Australia, Canada, Chile, Mexico, Peru, and Singapore—and builds on these standards to take into account experiences to date. The amount of regulatory change in each country that would be required by the chapter can be estimated based on the “transition periods.” Unless a transition period applies, the chapter’s obligations must be complied with on entry into force (EIF) of the agreement in that country. For six countries—Australia, Canada, Chile, Japan, Singapore, and the United States—there are no transition periods, suggesting substantial overlap between regulations currently in place and TPP’s requirements. The six remaining countries—Brunei, Malaysia, Mexico, Peru, New Zealand, and Vietnam—negotiated transition periods, with most related to test data protections and patents.

According to most witnesses who testified or made written submissions to the Commission or USTR, the chapter promotes the effective protection of U.S. intellectual property. For example, representatives of copyrighted content industries (such as movies, music, and books) and companies that provide Internet services supported provisions that foster digital services and a rules-based system for addressing online piracy. In the area of trademarks and geographical indications (GIs), new due process and transparency requirements were particularly important to the U.S. dairy sector. Similarly, representatives of U.S. manufacturing and semiconductor firms supported the chapter’s requirement for enhanced trade secret protections to address the growing international problem of trade secret theft.

The IPR chapter is divided into 11 sections (sections A–K) and covers general obligations, trademarks and GIs, patents, copyrights, trade secrets, and other forms of intellectual property, as well as IPR enforcement. In annexes, it also sets out the transition periods that some of the TPP countries obtained to comply with particular obligations. Sections A and B set out general provisions and commitments, including:

  • A requirement that the parties give effect to the minimum standards set out in the chapter, while also permitting more extensive protections in domestic laws;
  • Recognition that the parties may take measures to protect public health and promote access to medicine for all, consistent with the Declaration on TRIPS and Public Health;
  • A requirement that the parties ratify or accede to key multilateral IPR treaties;
  • A requirement that the parties provide national treatment on IPR matters (that is, treatment no less favorable than a party gives to its own nationals), subject to certain narrow exceptions;
  • A transparency requirement that public information on IPRs be made available on the Internet; and
  • A requirement that the parties endeavor to cooperate and engage in work sharing—for example, in patent processing—as appropriate.

The only commitment in these sections that includes transition periods is the requirement to ratify or accede to international IPR agreements. Five countries obtained extensions of time to comply.