The Trans-Pacific Partnership and what it could mean for Brand Owners

By Ed Seaford



The Trans-Pacific Partnership (TPP) has once again raised its head in the last few days, stimulating debate between Brand Holders who are unsure whether the latest recommendations are a help or hindrance for them.  For those who may not be aware of the TPP, it is an initiative that seeks to create a free trade treaty between the U.S. and Canada and 10 Trading Partners including: Australia, Brunei, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam, who collectively produce 40% of the world's total GDP ($107.5 trillion).

The core principal for the partnership is for members to try to make it easier and safer to buy and sell, and open up new markets for participating countries. It also sets up various regulations to protect businesses and consumers - like an open Internet, rules against counterfeiting and intellectual property theft. For those history buffs, it is the modern day equivalent of the Hanseatic League.
On October 4, 2015, negotiations between the countries were successfully concluded in Atlanta. It now has to go to each country's legislature for approval.

Notably, the agreement excludes China.  Many argue that's deliberate, in order to create greater balance to the trade dominance China in the region and other strategic reasons, including protecting interests in the oil-rich South China Sea.

However, it has been noted that there is an intention to let other countries participate, and so far the Philippines and China have indicated an interest.

The Trans-Pacific Partnership and IPR Protection Enhancements

The TPP claims to set a strong regional standard for the protection and enforcement of Intellectual Property rights (IPR). This will give participating countries businesses and investors’ confidence that they will face the same set of rules, regulations and protection mechanisms across all TPP markets.

The intellectual property provisions have already been leaked by WikiLeaks, and other sources, and are a subject of significant online debate and speculation.  The main spokes of contention are the effects on pharmaceutical patents and creating standardised policy around IPR protection online and digital innovation.

It seems as if the TPP will expand upon the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

In a Statement made by the US Office of Trade Representatives (USTR), each participating country has agreed to:
“..provide strong enforcement systems, including, for example, civil procedures, provisional measures, border measures, and criminal procedures and penalties for commercial-scale trademark counterfeiting and copyright or related rights piracy”

TPP on addressing Counterfeiting

In interviews with reporters on 05 March 2015, the USTR stated that they are “looking for strong border measures against pirated and counterfeit goods, to make sure, for example, that governments have the ability to seize infringing goods that they may find, even if there is no right holder complaint.”

“These are some of the tools that we’ve been seeking for many years, and we think the TPP will be a really important opportunity given the prevalence of counterfeiting and piracy in the Asia-Pacific region…

Statements and leaks on the TPP have made numerous mentions of the global counterfeiting problems originating from the SEA region; however, without the inclusion of China in the Agreement it raises questions of just how effective an Anti-Counterfeiting “regional standard” will be.  Given the volume of counterfeits originating from China today, the TPP is unlikely address the manufacturing aspect of the supply chain and thus without that cross-border alignment, counterfeits will still flood into local markets without any viable counter-protection measures.

TPP on addressing Cybersquatting

Whistle-blower website WikiLeaks has released what they claim to be the intellectual property chapter of the Trans-Pacific Partnership.  The two main clauses that relate to addressing cybersquatting from the WikiLeaks document were;

• an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy (UDRP), or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation; and

• online public access to a reliable and accurate database of contact information concerning domain-name registrants (mandatory accurate Whois information);

Countries like Australia, the US and Canada already have defined Dispute Resolution Policy procedures based on the principles of the UDRP, so the only advancements here would be the alignment of procedures in countries such as Malaysia and the Philippines, which will make it easier for IP owners to make complaints in these countries.

The interesting element of this clause is the enforcement of accurate and reliable whois information.  ICANN, the international governing body for domain names, requires every domain registrar to maintain a publicly viewable "WHOIS" database that displays personal contact information (including home addresses and phone numbers) for every registered domain.

However, cybersquatters can get around this requirement by purchasing “domain privacy”.  Domain Privacy is sold by most domain registrars to circumvent this requirement by displaying their own company information rather than the actual Registrants personal data, which can only be removed on reception of an official complaint notice.

Domain Privacy has not been specifically addressed in the leaked documents, but if domain name registrars are legally bound to display accurate personal contact information, then the legality of supplying this privacy product to consumers in participating TPP countries, of Registrars in participating countries, should rightly be brought into question.

TPP on addressing Copyright infringement and digital piracy

According to the WikiLeaks publication on the TPP, the term limit of copyright would be been lengthened, crackdowns on piracy would be hardened, and countries soft on digital piracy would need to spend hundreds of millions complying with new regulations.

Internet providers and their customers would be subjected to Digital Millennium Copyright Act (DMCA) style takedowns and possible criminal penalties, under proposed new intellectual property regulations. Penalties would be included for wilful infringement even when there is no financial gain, but "substantial prejudicial impact on rights holders" of copyrighted works.

Not only would the TPP force Internet Providers to provide details of infringers to copyright owners on formal request, but they would also be required to monitor the activity of persistent infringers.  All participating countries would need to amend local laws, which will make it easier for them to seek damages through litigation.  Damages would be calculated within a “pre-established damages” framework with a view to “deter future infringements”.

In countries like Australia, the Dallas Buyers Club film makers took several telecommunication ISPs to court to hand over the names of 4,500+ domain names of alleged infringers and won; however, they was dealt a blow when the Australian Federal Court refused the order of the release unless the filmmakers changed how they proposed to seek damages.

Under the TPP, the Dallas Buyers Club would not be impeded by such rulings and would likely be able to acquire details on infringers and seek damages as to “deter future infringements”.

Given the cost of digitally pirated music, films and software is $75 billion per year, this would represent significant opportunities for Copyright owners to reduce the damage of illegal streaming and online pirating is causing.

Under the TPP, it is likely that Copyright owners will start to mobilise their monitoring and enforcement activities in order to take advantage of the new laws and take action against pirate content across multiple online channels.