The Trans-Pacific Partnership Agreement: Further Harmonizing Intellectual Property Laws

By Nathaniel DeLucia

Negotiations are currently underway between the United States and eleven other Asia-Pacific countries (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam) to secure the U.S.’s latest free trade agreement, the Trans-Pacific Partnership Agreement (“TPP”).  The TPP will affect almost all areas of international trade, from   Even dispute settlement and environmental regulations are covered.  Despite the TPP’s broad coverage, its provisions (or proposed provisions) on intellectual property laws stand out, as they further the important goal of harmonizing the world’s intellectual property laws.
textiles and E-commerce, to intellectual property and labor laws.

World harmonization of intellectual property laws has been a major goal of international law since the creation of the original Paris Convention in 1883 and the Berne Convention in 1886.  These two treaties attempted to harmonize the signatories’ (predominately western Europe) patent, trademark, and copyright laws by creating certain minimum standards.  Since the creation of the Paris and Berne Conventions, many treaties have been signed which have sought to make the world’s intellectual property laws more uniform.  The U.S. has signed the Trade Related Aspects of Intellectual Property (“TRIPS”) Agreement in 1994(which incorporated and greatly expanded the scope of the Paris and Berne Conventions) and passed America Invents Act (“AIA”) in 2011 (which brought the U.S.’s patent laws more in line with the rest of the world).  The TPP is therefore simply continuing this trend of intellectual property harmonization. 

The TPP attempts to harmonize all of the major areas of intellectual property law, including patents, trademarks, copyrights, and trade secrets  by requiring signatories to bring their domestic laws more in line with United States law.  For example, the proposed patent agreement would include provisions similar to those found in the United States Hatch-Waxman Act for patents.  The Hatch-Waxman Act attempts to strike a balance between the interests of patent owners and their generic competitors in the pharmaceuticals industry by granting longer patent protection for pharmaceutical patents, but easier FDA approval for generics upon expiration of the patent. 

One of the major copyright provisions requires signatories to grant protection to copyrighted works for the life of the author plus seventy years.  Additionally, the proposed agreement also will have carve-outs, allowing use of copyrighted material by third parties, based on U.S. fair use and first amendment principles.   The term of protection for copyrighted works has, and remains, an area where many countries domestic laws differ.  For example, the United States has a term of life of the author plus seventy years, while Mexico grants protection for life of the author plus 100 years, but Japan currently only grants protection for life of the author plus fifty years.  Harmonizing the term of protection for copyrights will make administrating copyright protection easier, both for the courts and for copyright owners, and eliminate the troubling situation where a work is protected by copyright in one country, but not in another.

As one of the United States’ largest free trade agreements, the Trans-Pacific Partnership Agreement will no doubt have a tremendous impact on both international trade generally, and intellectual property specifically.

Photo of  TPP Member State Leaders ourtesy of Wiki Commons