Wednesday, 16 March 2011
The TPPA – for which the US IP proposals were leaked last week – is earning a little more attention: Crikey had a good short article yesterday by Bernard Keane (subscriber only, free trial), Rick Shera in NZ has been tweeting and has given an interview; Techdirt has an article; Michael Geist has offered up a few views; KEI has an overview. update: Rick Shera has the NZ take here.
For New Zealanders, this draft is all bad news – NZ is not yet subject to a US FTA so it has, for them, all the implications AUSFTA had for Australia back in 2004 (for a detailed look, see my article with Robert Burrell, available here).
For Australians, the million dollar question is – how much of this is new for us? The answer – there’s more than you might think. Again. I’ve not had time yet to do the really detailed view, but here’s the quick list of things to pay attention to as being AUSFTA-plus:
- Extensive new provisions on Geographical Indications. In its continuing desire to push out the European model on GIs and impose a more US-type system, the leaked TPPA draft has a bunch of provisions not seen in AUSFTA. It includes provisions that would more or less forbid countries from doing deals like the Australia-EU Wine Treaty: have a look, in particular, at Article 2.16 and 2.17 and 2.19 (pages 10-11 of the draft).
- Parallel importation: have a look at Article 4.2 and footnote 11. To me, this doesn’t look consistent either with present Australian law which allows some parallel importation, or the policy push in Australia to allow for more still.
- Copyright term: Article 4.5 goes beyond even AUSFTA in seeking copyright term extensions. In particular, prescribing 95 years from publication (rather than the 70 years from publication found in AUSFTA);
- Anti-circumvention: look at Article 4.9(d)(viii) – a more stringent test for exceptions than even is found in AUSFTA. In particular, exceptions to anti-circumvention created by regulation would only be able to last 3 years (ie they would have to be renewed) and would have to be based on ‘substantial evidence’ (not a requirement in AUSFTA, which requires only ‘credible demonstration’, which I think is a lower standard);
- Patentable subject matter: look at Article 8.1, requiring countries to allow patents for ‘a new form, use, or method of using a known product … even if such invention does not result in the enhancement of the known efficacy of that product’ (bring on the patent evergreening);
- A prohibition on pre-grant oppositions in patent: see Article 8.7
- Statutory damages in copyright and trade mark counterfeiting: Article 12.4 page 25;
- Article 12.8: more extensive provision of information by infringers in civil judicial proceedings;
- Statutory damages in anti-circumvention and rights management provisions: see Article 12.12(b); and
- a compulsory anti-camcording provision: Article 15.3;
And that’s just what I’ve picked up on a first read through. The enforcement provisions look more detailed but I’ve not had time yet to analyse the differences.
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