In a timely manner, only three days after the of the conclusion of negotiations on the Trans-Pacific Partnership Agreement (TPP), Prof. Matthew Rimmer accepted our invitation and shared few of the hidden secrets behind the agreement as part of IP Osgoode speaks series.

This ‘blockbuster agreement’—supposedly a jovial landmark in the sphere of diplomatic international relations—was diluted with a mixture of uncertainty and secrecy. According to Prof. Rimmer, the TPP is a controversial agreement for several reasons. First, many concerns were raised regarding the involvement of major companies, via special advisory groups and executives, in drafting parts of the agreement. Consequently, the companies allegedly had more influence over the TPP than the legislators since the latter could not review the agreement that was protected (and still is) under the blinds of confidentiality. Second, a few notable countries are not signatories of the TPP (China and Russia for example). The reasons underlying China and Russia’s exclusions raise questions regarding the TPP’s true nature—is it really a trade agreement or simply, as Prof. Rimmer implied, ‘the coalition of the willing’ that was established as part of a U.S. global trade strategy.

Much of what we know to date about the TPP was retrieved from . Jamie Love, the director of (KEI), who recently shared a into the TPP deliberations, alerted that "[i]n many sections … the TPP would change global norms, restrict access to knowledge, create significant financial risks for persons using and sharing information, and, in some cases, impose new costs on persons producing new knowledge goods."

IP Principles and Objectives

The TPP’s IP chapter covers a wide scope of topics and is positioned to change the normative boundaries of IP and, more specifically, of copyright. The traditional approach, as shaped in the U.S. and the U.K., is rooted in the perception of copyright as a means to inspire creation and proliferate knowledge. However, as Prof. Rimmer explains, it appears that the current vision of the TPP, under the influence of the music and movie industries, seeks to transform the normative balance of IP in order to strengthen the owners’ well-fortified rights. It is not hyperbole to define the TPP as a game changer that could have grave implications to the public domain.

A ‘Mickey Mouse’ Copyright Term Extension

According to Prof. Rimmer, the movie and the music industries have strategically argued for a prolonged extension of copyright terms. The TPP seems to answer their call, as it extends the term of protection to 70 years after the life of the author. This extension will likely have a profound affect in various fields, including Canadian cultural heritage, competition, innovation and the public domain. However, it is unclear if the TPP will include a demand for the revival of copyright works that were previously in the public domain. Prof. Rimmer also indicated that the TPP seeks to for orphan works.

Fair Use/Dealing and Disability Rights

There has been much academic discourse concerning whether the TPP language, in regards to the definition of fair use/dealing, is far too narrow or too broad compared to previous agreements, particularly the , in defining copyright exceptions. The TPP definition will most likely affect the course of this discussion. If the TPP adopts a narrow definition for fair use/dealing, it could set back recent developments in Canada related to the Supreme Court landmark decision in .

Copyright and disability rights stand in the center of recent international progress in copyright law. The —the most prevalent—aims to expand the recognition of the rights and interests of disabled people to access copyright protected materials, ending what was known as the ‘Book Famine’. According to Prof. Rimmer, the TPP makes an effort to recognize the Marrakesh Treaty. However, the Marrakesh Treaty is narrowly limited in scope to the visually impaired. Prof. Rimmer argues for a broader scope that will include other disabilities as well.

DMCA

The TPP seeks to export aspects of The Digital Millennium Copyright Act () and imbed Technological Protection Measures (known as ‘digital Locks’). Such anti-circumvention measures might endanger the fair use/dealing exceptions. The DMCA is a premature regime that was enacted almost two decades ago, in a pre-search engine and social media era, and is not well designed for current challenges. Stressing the absolute DMCA model as part of the TPP seems unreasonable. It should be noted that the DMCA model may have grave consequences to Canada, which in the past decade have defended its copyright laws against the DMCA successfully.

Protection and Enforcement

Protection and enforcement measures play an important role in the implementation of any international agreement. The TPP includes an arsenal of IP enforcement measures such as criminal offences and civil remedies. However, the TPP's rigid structure does not enable the members of the agreement much flexibility in adapting the TPP into their domestic laws. Prof. Rimmer criticized that the TPP ‘locks’ a specific model rigidly; it is uncompromising in regards to changes and modifications to the enforcement measures since it requires the approval of all members.

TPP’s Radical Vision

Prof. Rimmer concluded his lecture by stating that the TPP agreement ‘is radical’ not only in its objectives and purposes, but it also changes some of the fundamental doctrines in copyright such as term extension, fair use/dealing, liability issues etc., while diminishing the public domain in the process.

The TPP agreement is indeed a defining moment in the international effort to consolidate IP laws, however, the shroud of secrecy surrounding the TPP is not an encouraging sign. There is the general concern that the leaked terms of the TPP agreement will cause copyright laws to regress and destabilize the delicate balance between authors' and creators' rights to the public domain, thereby doing more harm than good.

The Sum of All Fears

On the eve of posting this blog, The Office of the U.S. Trade Representative (USTR) finally published the . Not surprisingly, we discovered that the TPP’s negotiation leaks were, in general terms, accurate. For example, the TPP includes a copyright term extension of ‘not less than the life of the author and 70 years after the author’s death’ (Article 18.63(a) to the TPP) as predicted. Obviously, we should read the TPP thoroughly, however—as it seems—it is indeed what we all feared it to be.

Aviv Gaon is a PhD candidate at Osgoode Hall Law School

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But then the international institutions changed. The WTO and WIPO used to be places where large IP-producing countries used to hold more sway, and it was easier to pass international agreements. However, as large developing countries started finding their voice, it became harder for IP owner countries to push their agendas. The culmination of this situation was the failure to approve the WIPO Broadcast Treaty in 2007, which was a big blow for the content industries. This Treaty was defeated by a combination of web activists, the tech industry and developing countries, and has to be taken as the final nail in the coffin for the quasi-unilateral control of IP owners of the international institutions.

I do not wish to be ideological in this assessment. There are few countries who are net IP exporters, and the US is still the one with the biggest stake in the creative industries (hence its interest in expanding IP protection and exporting such expansion). The USTR is not a mindless agency pushing for more IP protection to fulfill an evil agenda; it is doing so because it is in its best commercial interest. As such, for the last decade, the USTR has been engaged in a clear strategy that tries to export stronger IP protection around the world, because at the moment, anything that protects IP in a given territory will undoubtedly favour its balance sheet. TRIPS-plus agreements, and other bilateral efforts, have to be seen in that light.

Several other things have been happening at the international IP institutions. Policy-making at the WTO seems to have ground to a halt after the 2001 Doha Ministerial Conference. WIPO has also been seeing some structural and political changes. The institution has become more financially independent thanks to the success of the Patent Cooperation Treaty and the domain name dispute resolution procedure, which means that they do not have to take marching orders from content owners any more. The BRIC countries have also been gaining more expertise in the area of IP, so governance at WIPO has become an issue. WIPO is more balanced, but strangely, it is also a more dysfunctional institution as a result. It is precisely the growing balance between countries that has prompted some countries interested in international maximalist agendas to try to implement their agendas through international trade treaties.

So, if you want to expand IP protection, but cannot do it at the international IP institutions, what do you do?  Enter the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP).

The ACTA negotiation was riddled with compromise from the start. In retrospect, it may have been a mistake for the USTR to include countries with their own large stake in the IP world, particularly Europe and its interest in maximizing protection for geographical indications. In the end, ACTA resulted in a much more diluted agreement than what it was originally.

So now we have had some glimpses at the IP provisions contained in the TPP, and they are what ACTA could not be. While ACTA resulted in a compromise, the TPP attempts to go for broke and contains a wishlist for the content industries. This includes its own version of the Broadcast Treaty, harsher provisions against circumvention of technological protection measures, erosion of existing exceptions, the potential destruction of the first-sale doctrine, and what I can only class as an open war against intermediaries. In short, TPP reads like the frustrated collection of a department that has had more than a decade of not getting its way.

So we have interesting days ahead of us. Will TPP fall prey of the ?

Andres Guadamuz is Vice President at Innova Technology, a software firm in Costa Rica, and Associate Director of the SCRIPT Centre for Studies in Intellectual Property and Technology Law at the University of Edinburgh, where he has also served as Lecturer in Electronic Commerce Law. For more details about some of the provisions in the TPP, .

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Globalization has brought many things with it - among them the need to take out patents for the same invention in many countries. Therefore, to an increasing degree, patent offices around the world make parallel examinations of patent applications for the same invention. This is the background of the establishment of the PPH - Patent Prosecution Highway.

PPH is a mechanism in which a patent application, which has already been deemed allowable in one IP office (office of first filing), provides a basis for a faster way through the system of another IP office (office of second filing). Thus, the purpose of the PPH program is to accelerate examination of a patent, when an indication is received that some of the claims in a corresponding application have been found allowable by another IP office. It is noted that it is not a requirement to use PPH that proceedings before the first IP office has come so far that a patent has been granted. However, it is a requirement that the first authority has found at least one claim patentable.

Recently three expiring PPH pilot agreements between Canada and have been extended for an additional two years until September 30, 2013. Earlier this year, the PPH pilot project between CIPO and was replaced by a PPH agreement for an indeterminate period. In addition, there are pilot projects between Canada and Spain, Finland and Germany, which began in October 2010.

In addition to the above-mentioned PPH pilot programs, in January 2011, CIPO launched a . Where claims have been found allowable at the PCT level, the applicant can make a PCT-PPH request to CIPO for accelerated examination of a corresponding national phase application.

The agreements imply that inventors may request an accelerated processing of their patent application:

• At the CIPO, if a IP office in one of the participating states has previously accepted that the corresponding patent claims are patentable in the state of first filling (Denmark, Japan, Korea, US, Spain, Finland and Germany)
• At an IP office in one of the participating states, if CIPO has previously accepted that the relevant patent claims are patentable in the Canada.

There are specific formalities that must be met for acceptance into the PPH. According to the CIPO web page are there for requesting accelerated examination under the PPH pilot programs.

Both the patent applicants and the IP offices benefit from the PPH programs.

One of the benefits among others for patent applicants in Canada under the PPH programs is an accelerated patent issuance. According to the webpage for the PPH pilot programs, CIPO estimates that use of PPH in Canada usually makes it possible to receive the reception of the first examination action within 90 calendar days from the date of PPH request.

In addition to this, there is no fee for requesting advanced examination under the PPH projects in Canada. Regular fees for requesting examination will apply. Thus, it has the potential for reducing prosecution costs.

The PPH programs means that the other IP office can use the work that one authority has made, instead of starting from scratch. It is a huge waste of resources if the IP offices do not try to use each other's work in the proceedings of applications for patents for similar inventions.

This is just one way to speed an application through the CIPO. Other opportunities are also available. Another option is to ask for advanced examination of a Canadian patent application (section 28 (1)(a) of the Patent Rules). In contrast, for applications under the PPH an extra fee will apply for an advanced examination and the applicant or a third party must declare that failure to advance the application would prejudice their rights. In other words, the case must be exceptional.

In March 2011, Section 28 of the Patent Rules was amended to introduce a procedure for accelerating the prosecution of Canadian patent applications relating to (section 28(1)(b) of the Patent Rules). Similar to the PPH pilot projects, no government fee is required.

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