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USA: CRS-Report on Trans-Pacific Partnership Negotiations

On 5 September 2012, the Congress Research Service (CRS) published its report "The Trans-Pacific Partnership Negotiations and Issues for Congress" authored by Ian F. Fergusson (Coordinator Specialist in International Trade and Finance), William H. Cooper (Specialist in International Trade and Finance), Remy Jurenas (Specialist in Agricultural Policy) and Brock R. Williams (Analyst in International Trade and Finance). The CRS-Report examines the Trans-Pacific Partnership agreement (TPP) within the broader context of multilateral and bilateral trade relations and international market access and compares the TPP to the Anti-Counterfeiting Trade Agreement (ACTA) among other free trade agreements (FTAs) the USA has signed with other nations that carry provisions increasing the enforcement of intellectual property rights abroad.

In addition to market access, the TPP contains several provisions that build upon disciplines contained in the World Trade Organization’s Uruguay Round agreements. Many of these provisions have become part of the standard template for U.S. FTAs. Anmong the core negotiation issues, the CRS-Report touches expecially on three IT-related areas:

1. Intellectual Property Rights (IPR)

"The United States has sought increased intellectual property rights (IPR) protection in its FTAs. IPR negotiating objectives in the last U.S. trade promotion authority (P.L. 107-210) in effect between 2002 and 2007 included, among others: (1) the application of existing IPR protection to digital media; and (2) negotiation of trade agreements in terms of IPR that “reflect a standard of protection similar to that found in U.S. law.” This phrase opened the door to the negotiation of provisions that go beyond the level of protection provided in the WTO Trade Related Aspects of Intellectual Property (TRIPS) Agreement, most recently with the TPP negotiations. For example, the United States has sought to have its partner countries sign the World Intellectual Property Organization’s (WIPO) Performances and Phonograms Treaty, an agreement to which Brunei, Malaysia, New Zealand, and Vietnam are not parties. For its part, New Zealand reportedly floated a discussion document that favors a “TRIPS-aligned” position, one that would be consistent with, but not go beyond, international standards already found in the TRIPS Agreement. In contrast, U.S. business groups have favored the TRIPS-plus provisions found in the KORUS FTA as a baseline for future negotiations." (CRS-Report, p. 28)

2. Enforcement

"The U.S. text, parts of which have been released unofficially, call for criminal penalties for “willful” trademark counterfeiting and copyright piracy on a “commercial scale.” Commercial scale includes acts that result in no direct or financial gain, such as file sharing. It would also require criminal penalties for importing counterfeit labeling and packaging whether done willfully or not, and it would requires criminal penalties for cam-cording in movie theatres. Some countries, notably Australia, New Zealand, and Singapore, reportedly have sought to replace U.S. text on criminal enforcement with that of the Anti-Counterfeiting Trade Agreement (ACTA), which was signed last year.60 Although both ACTA and the U.S. proposal, which largely track the IPR provisions in the U.S.-Korea FTA, provide stricter criminal enforcement measures than the World Trade Organization (WTO) Trade-Related Intellectual Property Agreement (TRIPS), ACTA provides greater flexibility than what is reportedly contained in the U.S. text regarding a country’s enforcement of IPR. For example, in ACTA, financial gain is necessary to be considered commercial scale for prosecution, and willfulness is required for importation of trademark infringing goods." (CRS-Report, p. 28-29)

3. Internet Providers

"One area where traditionally there has been a difference of opinion among U.S. stakeholders relates to copyright enforcement and the internet, especially between internet service providers (ISP) and traditional content providers. ISPs have been concerned that while other countries do not often have so-called “fair use” copyright provisions that are enshrined in U.S. law, U.S. negotiators are not sufficiently advocating for that position in FTAs. 61 U.S. negotiators had come under pressure from internet providers and other activists to provide a more explicit balance between the rights of content providers and users of copyright material. The United States reportedly proposed such language to the IPR chapter at the San Diego round of negotiations just concluded in July 2012.62 The proposal places certain limitations on the copyrights consistent with the so-called ‘three-step test”: that the exception (1) is consistent with domestic copyright law; (2) does not conflict with the normal exploitation of the work; and (3) does not unreasonably prejudice the interest of the rights holder. The proposal also reportedly obligates each country to provide for such exceptions, known as fair use, in their domestic copyright laws." (CRS-Report, p. 29)

CRS-Report "The Trans-Pacific Partnership Negotiations and Issues for Congress" of 5 September 2012 by Ian F. Fergusson/ William H. Cooper/ Remy Jurenas/ Brock R. Williams

Verlag Dr. Otto Schmidt vom 05.12.2012 10:15

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