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Barreda Moller writes...

Intellectual Property under the Trans-Pacific Partnership (TPP) Agreement

The Trans-Pacific Partnership Agreement (TPP by its acronym in English) is an ambitious multilateral free trade agreement that seeks to promote the economic growth, through the development of innovation and investment, as well as the creation of jobs for the nationals of the member countries of the agreement. Initially discussed by Brunei Darussalam, Chile, New Zealand and Singapore in 2005, other countries such as the United States of America joined on to this initiative in 2008, Australia, Malaysia, Peru and Vietnam in 2010, Canada y Mexico in 2012 and finally Japan in 2013, but it is opened to the inclusion of other countries that are showing interest in participating in the negotiations.

The TPP represents a potential market of 800 million people all of which, with the exception of Vietnam, have a GDP per capita greater than the Peruvian GDP and will allow a preferential relationship with important economies of America, Asia and Oceania which represent a little more than 30% of the total trade exchange of Peru.

The subject matter which is being negotiated in the agreement is varied and comprises among other chapters Market Access, Rules of Origin, Customs Procedures, Health and Phytosanitary Measures, Trade Technical Obstacles, Public Procurement, Intellectual Property, Trade Defense, Competition Policies, Cross-border Trade of Services, Financial Services, Temporary Entry of Business People, Telecommunications, Electronic Commerce, Investments, Environment, Labor, Cooperation, Regulatory Coherence, Small- and Medium-Sized Enterprises, Competitiveness, Development, Institutional Issues and Settlement of Controversies.

Negotiations for the approval of the text of the TPP have been kept in secret among the government officers of the member countries, leading to critics of the private sector due to the little transparency of the discussions. Nevertheless, thanks to the known “wikileaks” the text draft of the chapter relative to Intellectual Property leaked, which includes innovations as to legislation on invention patents, trademarks, copyrights, geographical indications and due compliance with the rules for their protection.

Among the main modifications of the Intellectual Property legislation that are being discussed and that would be eventually accepted, are the following:

- The proposal of extending the validity term of the invention patents to compensate the unreasonable delay of the procedure for its granting. For such purpose, this “unreasonable delay” would be understood as a delay greater than four years to obtain a patent grant counted from the application filing date or that more than two years have pass from the date on which the in-depth examination was requested, the invention patent not having been granted, whichever occurs first. This does not represent much problem to Peru which legislation already contemplates the adjustment for unreasonable delay, except for the patent that claims a pharmaceutical product or process that was specifically exempted from being benefited from said adjustment.

- The extension of the validity term of copyright protection to at least seventy years post mortem auctoris. This proposal does not represent either an inconvenient for Peru since our legislation already contemplates the same protection term, although México –following its own legislation currently in force on this matter- proposes to extend said term to one hundred years; and the United State of America proposes one hundred and twenty years, in which case, if any of these proposals is approved, the Peruvian law would have to be modified to include the new approved term for copyright protection.

- The implementation of the three strikes rule or graduated response, which would allow internet service providers to suspend or disconnect the internet service to those users who have received three successive notifications imputing to them the repeated violation of copyright by this means and without the need of a previous legal proceeding in which the infringer has to be listened in advance. This is a subject that, somehow, should have been legislated in our country through implementation of the United States – Peru Trade Promotion Agreement. However, the matter is pending because, when discussing the proposals for establishing the responsibility of internet providers due to violations of Intellectual Property rights, there was strong opposition of different sectors which invoked the freedom of speech and of information, and the discussions to pass a law on the issue were stopped.

- The increase of criminal sanctions for violation of copyright, proposing criminalizing non-profit minor infringing behavior, as well as the non-authorized use of intellectual property in trade, commonly known as “piracy”, having or not profit purposes when trying to obtain an economic or trade advantage. This proposal also does not represent inconveniences since our Criminal Code already contemplates this treatment although judges and district attorneys are reluctant to apply the rule with severity.

- The increase of invention patent infringement sanctions, particularly, to empower the competent authorities so that they can establish damages up to an amount three times greater than the caused damage, without prejudice to the payment of court costs and attorney fees of the process. This does not represent either an inconvenience for our legislation although some reform will be required for enabling the competent authorities to establish damages above the real damage caused by the infringement of Intellectual Property rights.

- Each contracting party will ratify or adhere to the following agreements on the date the TPP comes into force:

a. Patent Cooperation Treaty (1970), according to the amendment of 1979;
b. Paris Convention for the Protection of Industrial Property (1967);
c. Berne Convention for the Protection of Literary and Artistic Works (1971);
d. Convention relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
e. Protocol Relating to the Madrid Agreement Concerning the International Registration of Trademarks (1989);
f. Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), according to the amendment of 1980;
g. International Convention for the Protection of New Varieties of Plants [MX propose: (1961) as revised in 1972, 1978 or] (1991) (UPOV Convention);
h. Singapore Treaty on the Law of Trademarks (2006);
i. WIPO Copyright Treaty (1996); and
j. WIPO Performances and Phonograms Treaty (1996).

In this case, all the Treaties and Conventions aforementioned do not represent any difficulty for Peru with the exception of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Trademarks (1989), which approval has always received constitutional, legal and administrative objections by different involved sectors and will cause an impact on the economic resources generated by the competent national office.

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