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Yesterday, a draft of the U.S. proposal for an intellectual property (IP) chapter of the transpacific partnership agreement (TPPA) leaked on the Internet. The U.S. proposal calls for IP protections and enforcement obligations more extensive than those called for in the Anti-Counterfeiting Trade Agreement (ACTA) or the most recent U.S. Free Trade Agreement (FTA) – the Korea U.S. (KORUS) FTA.
Here are the highlights of the U.S. proposal:
· A prohibition on importation into TPP countries of copyrighted works without permission from rights holders, even where the rights holder had authorized making of those copies in another country. This prohibition would affect the so called “gray market” for goods. The gray market allows people to take advantage of price discrimination and import products sold from foreign countries and sell them for cheap in the U.S. Rights holders have complained against “gray market” importation for some time.
· Significant increases in copyright duration for works owned by corporations. KORUS provides for a duration of 70 years from publication or 70 years from creation. The TPP proposal calls for 95 years from publication or 120 years from creation of the work.
· There is a placeholder for the inclusion of copyright limitations and exceptions
· A blanket ban on circumvention of DRM accompanied by extremely narrow and specific limitations and exceptions.
· Circumvention of DRM is treated as a separate offense.
· The enforcement section states as a matter of principle that lack of sufficient resources is not an excuse to comply with enforcement requirements outlined in the draft. PK and other public interest representatives have explained, in our Special 301 comments and testimony, that such pressure to expend scarce resources would be too burdensome on developing economies.
· Seizure and forfeiture provisions that would reach even more goods than ACTA would.
Several of these provisions, if they become part of a final TPP text, are likely to require changes to domestic laws of other TPP countires.
The U.S. proposal is not the only TPP proposal to be leaked. In February, IP chapters proposed by Chile and New Zealand also leaked on the Internet. These texts, though incomplete, show the promise of containing more balanced provisions that account not only for rights holder interests but also public interest. While the U.S. proposal also contains a place-holder for limitations and exceptions, these may not apply to works wrapped in DRM, thereby rendering them increasingly useless in the digital era. To preserve these rights, I hope the New Zealand and Chile delegations will be able to stick to their starting points and prevent the U.S. delegation from dictating terms to them.
As for the elephant in the room, transparency and public participation in the formulation of the text – well, none exists. However, given the incessant leaks that seem to characterize the TPPA, just as they characterized ACTA, one begins to wonder whether it really matters. Those interested in talking to the Ofice of the United States Trade Representative can do so based on the leaked text. The agency may not confirm or deny its provenance, but until they deny it, we will share our views on the text with them.