Free Trade Agreement: Trans-Pacific Partnership

Guest post by Alex Stimac, Patterson IP Law summer associate.

In 2008, the United States entered into negotiations with Chile, New Zealand, Singapore, and Brunei for a proposed free trade agreement called the Trans-Pacific Partnership. Since then, the agreement has expanded to include Australia, Peru, Vietnam, Malaysia, Mexico, Canada, and Japan. The TPP is pending as of August 2014, but once passed will be one of the largest trade agreements in the world.

Negotiations for the TPP have occurred privately, with the contents being accessible only to the trade representatives of each nation. In the fall of 2013, the anti-secrecy organization WikiLeaks leaked a version of the TPP. These and other leaked documents revealed the contentious nature of this agreement, particularly with regard to its intellectual property (“IP”) provisions. In total, these leaked documents contained at least 19 points of disagreement between the US and the other parties regarding IP.

While the IP provisions in the TPP largely track with existing U.S. IP law, they expand upon it in several key areas. In addition, the TPP may potentially raise the global standards created by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The IP areas most affected include copyrights, patents, and enforcement.

The TPP proposes much more robust copyright protections against piracy and other forms of infringement. Some nations have also proposed extending the life of a copyright from 50 years to up to 100 years after the author’s death. In addition, one proposal would prohibit temporary storage of electronic files, otherwise known as buffering. This may require streaming content providers like Netflix to purchase additional licenses for each stream they offer, which could be complicated and expensive.

The TPP may expand patentability of pharmaceutical products and lengthen their lifetime by up to five years. Some fear this may reduce the availability of cheap generic medicines or increase the price of available medicines in their home countries.

Enforcement of IP laws is also likely to change for many nations involved. Member states will likely have to bring their enforcement regimes in line with that of the United States, providing for stiffer penalties for infringement, including criminal penalties.

Proponents of the deal point to the economic benefits the agreement is predicted to bring member nations. Critics have expressed concern with the lack of transparency in negotiations, and with the IP provisions, noting that much of the projected benefits will primarily go to patent and copyright holders and that innovation may suffer as a result.