Posted on 1/7/2016 1:26:21 AM By John L. Ambrogi

The Trans-Pacific Partnership Agreement ("TPP") is a free trade agreement that is in the process of being advanced by nine countries: The United States, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. Although the TPP covers a wide range of issues, the more significant provisions to this author involve the proposed intellectual property provisions of Chapter 18. The full text of the TPP is available from a number of sources, including:http://tpp.mfat.govt.nz/text.

The agreement's stated goal has been to "promote economic growth; support the creation and retention of jobs; enhance innovation, productivity and competitiveness; raise living standards; reduce poverty in our countries; and promote transparency, good governance, and enhanced labor and environmental protections." Among other things, the TPP Agreement contains measures to lower trade barriers such as tariffs, and establish an investor-state dispute settlement mechanism (but states can opt out from tobacco-related measures). The United States government considers the TPP as the companion agreement to the proposed Transatlantic Trade and Investment Partnership (TTIP), a similar agreement between the United States and the European Union. The official TPP website promotes the agreement within the US as:

“The Trans-Pacific Partnership (TPP) writes the rules for global trade—rules that will help increase Made-in-America exports, grow the American economy, support well-paying American jobs, and strengthen the American middle class.”

Some of the more significant language that pertains to intellectual property include:

  • The expansion of the US lifetime-plus-70-years rule afforded to copyright holders.
  • Punishment for attempts to circumvent digital-rights-management (DRM) restrictions that are independent of punishments for copyright infringement —creates potential liability for hacking DRM-protected material even if no copyright infringement is committed.
  • Criminalization of "unauthorized, willful access to a trade secret held in a computer system."
  • Upon receipt by a Party’s investigating authorities of a properly documented antidumping or countervailing duty application with respect to imports from another Party, and no later than seven days before initiating an investigation, the Party provides written notification of its receipt of the application to the other Party.
  • Injunctive relief to prevent counterfeit importations.
  • Increased damages provision (up to treble specifically for patent infringement) and an overall standardization of factors going into damage calculations and awards.
  • Authority to order, at the conclusion of civil judicial proceedings that the prevailing party be awarded payment by the losing party for court costs or fees and appropriate attorney's fees, or any other expenses as provided for under the law of that jurisdiction.

It is important for those who do business internationally or provide legal advice to clients in the international arena to monitor the passage of the TPP and the resulting impact on business functions, intellectual property rights, and enforcement programs.

President Obama has already given official notice of his intent to sign the agreement once the 90-day review period is complete. In light of prior congressional-executive agreements (namely the TPA), Congress is required to introduce and vote on an administration-authored bill for implementing the TPP with minimal debate and no amendments, with the entire process taking no more than 90 days. During the 90-day review period, Congress has the opportunity to review the entire agreement. Congress cannot vote on the agreement before the 90-day review period is over. Therefore, the agreement cannot be voted on before early March 2016. A majority of Congress must approve the agreement before it can become effective in the United States. So this is clearly a fast-track agreement that will need bipartisan (yes, bipartisan) approval and cooperation.

Following Congressional review we move into the public phase. The full trade deal will be open for anyone to review for 60 days, allowing interest groups to provide feedback. Therefore, not really much time at all considering the vastness of the proposed treaty. Then the U.S. International Trade Commission will have to conduct a full economic review of the deal. The agency has up to 105 days to complete this step but the process could take much less time. Once the implementing bill is introduced in the House and the Senate, Congress has a maximum of 90 days to approve or disapprove the trade deal but can move much more quickly if there is support for it.

The end.

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"Intellectual Property"