Transcript Trends in Intellectual Property Rights in U.S. Trade

Trends in Intellectual Property
Rights in U.S. Trade Agreements
KIRA M. ALVAREZ
DEPUTY ASSISTANT USTR AND
CHIEF NEGOTIATOR FOR IPR ENFORCEMENT
USTR
Free Trade Agreements
Free Trade Agreements
 FTAs help provide certainty and predictability for
American exporters of IP-intensive goods and
content
 General IPR trade negotiating objectives:
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to further promote adequate and effective protection and
enforcement of IPR
to secure fair, equitable, and nondiscriminatory market access
opportunities for U.S. persons that rely upon IPR
to respect the Doha Declaration on the TRIPS Agreement and
Public Health
Free Trade Agreements
 Australia, Bahrain, Canada (NAFTA), Chile,
Colombia, Costa Rica (CAFTA-DR), Dominican
Republic (CAFTA-DR), El Salvador (CAFTADR), Guatemala (CAFTA-DR), Israel, Jordan,
Korea, Mexico (NAFTA), Morocco, Nicaragua
(CAFTA-DR), Oman, Peru, Singapore
 Most recent FTAs with Colombia, Korea,
Panama.
 U.S. FTAs include comprehensive, state-of-theart IPR provisions, and are subject to FTA
dispute settlement provisions
Trans-Pacific Partnership (TPP)
 Australia, Brunei Darussalam, Canada, Chile,
Malaysia, Mexico, New Zealand, Peru, Singapore,
Vietnam
 Key initiative through which the U.S. seeks to
advance the multi-faceted U.S. trade and
investment interests in the Asia-Pacific region.
 Goal is to negotiate an ambitious, 21st century
regional agreement , in order to create a platform
for integration across the region.
 IP will be an important component
What types of IPR provisions are
typically found in U.S. FTAs?
What types of IPR provisions are
typically found in U.S. FTAs?
 Protection for Copyrighted Works in the Digital
Economy
Protection for TPMs/Digital Locks
 Term of protection equivalent to US law; Life+70
 Rules to prohibit unauthorized receipt/distribution of
satellite signals
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 State of the Art protection for Trademarks
 Development of online system of registration
 First in Time/First in Right vis a vis GIs, as well as due
process for TM and GI registrations
 Dispute resolution system for trademarks used in
domain names
What types of IP provisions are
typically found in U.S. FTAs?
 Strong Protection for Patents and Clinical Trial
Data
Extension of patent terms to compensate for delays in
granting the original patent
 Limits the grounds for revoking patents, protecting
against arbitrary revocation
 Assures protection for newly developed plant varieties
and animals
 Clarifies that test data and trade secrets submitted to a
government for the purpose of product approval will be
protected against unfair commercial use for 5 years for
pharmaceuticals or 10 years for Ag chem.
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What IP enforcement provisions are
typically found in U.S. FTAs?
 Comprehensive civil, criminal, and customs
provisions.
 Criminal penalties for significant willful copyright
or related rights infringements that have no direct
or indirect motivation of financial gain; and willful
infringements for purposes of commercial
advantage or private financial gain.
 Counterfeit or illicit labels or documentation
 Legal incentives for service providers to cooperate
with copyright owners in deterring unauthorized
storage and transmission
ACTA
What is ACTA?
 Builds on existing international IPR rules
 Establishes and strengthens standards for
enforcement issues where international legal
frameworks do not exist or need to be strengthened
 Increases international cooperation, strengthening
the framework of practices that contribute to
effective enforcement of intellectual property rights
 Focused on counterfeiting and piracy activities that
significantly affect commercial interests, rather than
on the activities of ordinary citizens
Why is ACTA Needed?
 Proliferation of counterfeit and pirated goods in
international trade poses threat to development
of the world economy.
 Trade in these goods causes significant
financial losses for the right holders and
legitimate businesses and, in some cases,
represents a risk to consumers.
 Expertise, innovation, quality, and creativity
are the main factors for success in knowledgebased economies.
Objectives
 Provide a framework to more effectively combat the
challenges of IPR infringement today, particularly in
the context of piracy and counterfeiting.
 Commitments to strong laws
 Framework for ongoing cooperation and
 Promotion of effective enforcement practices.
 Establish a Leadership agreement, setting a positive
example for on strengthening IPR enforcement.
 Growth over time, reflecting the growing
international consensus on the need for strong IPR
enforcement.
Participants in the Negotiations
 Australia
 Canada
 EU (and its Member States)
 Japan
 Korea
 Mexico
 Morocco
 New Zealand
 Singapore
 Switzerland
 United States
Provisions of the Agreement
 Three main areas:
 International Cooperation:
 capacity building and technical assistance in improving
enforcement, and
 international cooperation among enforcement agencies.
 Enforcement Practices:
 Formal or informal public/private cooperation;
 Fostering of specialized intellectual property expertise within law
enforcement structures; and
 Measures for raising consumer public awareness.
 Legal Framework
Legal Framework
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 Civil Enforcement provisions dealing with issues such as damages,
injunctions to stop further infringements, recovery of costs and
attorneys’ fees, and destruction of infringing goods.
 Border Measures (customs procedures) regarding both import and
export shipments.
 Criminal Enforcement:
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requirements for criminal remedies , including clarification of what constitutes
copyright piracy on a commercial scale;
a requirement for criminal remedies for use or importation of labels for packaging
of counterfeit goods;
a provision on unlawful camcording of movies in theaters;
commitments on seizure and destruction of fake goods, seizure of the equipment
and materials used in their manufacture, and criminal proceeds.
 Enforcement of IPR in the Digital Environment, including
 A balanced framework that addresses the challenge of copyright piracy on digital
networks while preserving fundamental principles such as freedom of expression,
fair process, and privacy; and
 Requirements to provide strong regimes against circumvention of digital locks (i.e.
technological protection measures);
10 Key Strengths of ACTA
1.
ACTA will create a first-of-its-kind alliance of trading partners representing
more than half of world trade to cooperate in the fight against piracy and
counterfeiting.
2.
ACTA will go beyond TRIPS in requiring that border enforcement
authorities be empowered to act on their own initiative against both imports
and exports of counterfeit and pirated goods.
3.
ACTA will be more explicit than TRIPS in requiring availability of criminal
penalties when piracy or counterfeiting is carried out for commercial
advantage (such as companies using pirated software).
4.
ACTA will require criminal remedies against importation or use of labels or
packaging for counterfeit goods.
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ACTA will require that criminal authorities be able to act on their own
initiative (“ex officio”) in IP cases, rather than waiting for a complaint.
10 Strengths (con’t)
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ACTA will include commitments on criminal seizure and destruction of fake
goods, seizure of the equipment and materials used in their manufacture, and
seizure of the criminal proceeds from IP offenses.
ACTA will clarify existing international requirements for remedies against
circumvention of technological protections used in the digital environment (such
passwords or encryption) and trade in circumvention devices.
ACTA will go beyond TRIPS in calling on parties to addresses widespread
distribution of pirated copyrighted works on digital networks while preserving
fundamental principles such as freedom of expression, fair process, and privacy.
ACTA will enhance the TRIPS framework for civil enforcement provisions
dealing with issues such as damages, provisional measures, recovery of costs and
attorneys’ fees, and destruction of infringing goods.
ACTA will be the first international agreement to promote practices that
contribute to effective enforcement of IPRs, such as specialization, data analysis,
internal coordination, stakeholder consultation, risk management, transparency,
public awareness, and environmentally sound destruction of fake goods.
Facts about ACTA
ACTA recognizes of the need for balance: ACTA is explicitly premised on the desire of
participating governments for IP enforcement that “…balances the rights and interests of the
relevant right holders, service providers, and users.”
Preamble: “Desiring to address the problem of infringement of intellectual property rights,
including infringement taking place in the digital environment, in particular with respect to
copyright or related rights, in a manner that balances the rights and interests of the
relevant right holders, service providers, and users”
ACTA recognizes the importance of free expression, fair process, and privacy: ACTA
is the first and only international IP agreement to explicitly provide that enforcement of
intellectual property rights in the context of the Internet “shall be implemented in a manner that …
preserves fundamental principles such as freedom of expression, fair process, and privacy”
Article 27.2: “Further to paragraph 1, each Party’s enforcement procedures shall apply to
infringement of copyright or related rights over digital networks, which may include the
unlawful use of means of widespread distribution for infringing purposes. These procedures
shall be implemented in a manner that avoids the creation of barriers to legitimate activity,
including electronic commerce, and, consistent with that Party’s law, preserves
fundamental principles such as freedom of expression, fair process, and privacy.”
Facts about ACTA
ACTA protects privacy laws: Nothing in the ACTA requires parties to disclose
information “contrary to … laws protecting privacy rights.”
Article 4.1: “Nothing in this Agreement shall require a Party to disclose …
information, the disclosure of which would be contrary to its law, including laws
protecting privacy rights, or international agreements to which it is party.”
ACTA helps authorities protect public health and safety against the threat
posed by potentially unsafe counterfeit goods.
Counterfeit products can pose a significant risk to public health, such as toothpaste
with dangerous amounts of diethylene glycol (a chemical used in brake fluid), military
systems with untested and ineffective components to protect soldiers, auto parts of
unknown quality that play critical roles in securing passengers, and suspect
semiconductors used in life-saving defibrillators.
Protecting intellectual property rights helps ensure adherence and compliance with
numerous public health and safety regulations designed to protect our communities.
Facts about ACTA
ACTA recognizes the Doha Declaration on TRIPS and Public Health, and does not
mandate civil enforcement or border measures for patents.
Preamble: “Recognizing the principles set forth in the Doha Declaration on the TRIPS Agreement
and Public Health, adopted on 14 November 2001, at the Fourth WTO Ministerial Conference.”
In addition, the increased border measures contemplated by ACTA will not impede the transit of
generic medicines, as ACTA explicitly notes that the border measures provisions will NOT apply
to the enforcement of patents or undisclosed information.
ACTA protects against abuse: ACTA stipulates that IP enforcement procedures “shall be
applied in such a manner so as … to provide for safeguards against their abuse.”
Article 6.1: Each Party shall ensure that enforcement procedures are available under its law so
as to permit effective action against any act of infringement of intellectual property rights
covered by this Agreement, including expeditious remedies to prevent infringements and
remedies which constitute a deterrent to further infringements. These procedures shall be
applied in such a manner as to avoid the creation of barriers to legitimate trade
and to provide for safeguards against their
Facts about ACTA
ACTA is not secret: A draft was released in April 2010, while negotiations were
still ongoing. The final text has been public for more than a year.
ACTA is one tool governments can use to cooperate: It is certainly not a
new international organization, and it does not rival or replace any existing
organization.
Thank You!
Gracias!
KIRA M. ALVAREZ
DEPUTY ASSISTANT USTR AND
CHIEF NEGOTIATOR FOR IPR ENFORCEMENT
[email protected]