[Updated Dec 3, 2013]. USTR released a document describing several policy changes in its Trans Pacific Partnership trade agreement proposals on provisions related to the prices of medicines. It is not known whether these changes are related to public pressure that has been mounting on USTR after the leaks of its positions on Wikileaks last week. But there have been reports of increased concern being expressed on Capital Hill and to the White House about the lack of transparency in the negotiating process since the leaks, perhaps prompting this new step towards explaining some of its most controversial positions in public. This note provides some preliminary analysis of what we learn from this new statement.
In the midst of the controversy surrounding the release of a Trans Pacific Partnership Agreement (TPP) negotiating text on intellectual property by Wikileaks yesterday, over 80 law professors of intellectual property law and related disciplines have written to President Obama, Members of Congress and the United States Trade Representative calling for the creation of a public process to vet the TPP’S intellectual property proposals.
The letter specifically notes that “even in light of yesterday’s release by WikiLeaks,” public debate on the agreement’s proposals “beyond speculation would be impossible since there has not been any official release of text.”
In the past week or so, we have been discussing the pledges that companies make regarding their patents. These come up frequently in the area of standards-development and FRAND commitments, but other places as well. In the past few days, the General Counsel of both Cisco Systems and Verizon made public pledges that their companies would not sell patents to non-practicing entities (NPEs, referring to the type of NPEs known as Patent Assertion Entities (PAEs) or, colloquially, patent “trolls”). We have added these new pledges to the compendium of non-SDO patent pledges collected here:
The Verizon pledge is interesting, because it was made orally by Randy Milch (Verizon GC) at a conference held at University of Colorado. Cisco’s pledge appears in an op-ed piece that Mark Chandler (Cisco GC) posted in Forbes.
If you are aware of other “patent pledges” made outside of the formal standards-development setting, please let us know!
There has been a surge of interest lately in commitments to license patents on terms that are “fair, reasonable and non-discriminatory” (FRAND). The patents at issue in these cases often cover industry standards that were developed in collaborative trade associations known as standards-development organizations (SDOs). But while the principal focus of litigants and regulators in recent years has been on patent commitments made within SDOs, parties have increasingly made voluntary public patent statements and commitments in less formal settings. Such statements and commitments can take the form of covenants not to sue, promises to license on royalty-free or FRAND terms, or clarifications of previous commitments that have been made.
Today at 2pm, Prof. Sean Flynn will participate in an event at the Brazilian Chamber of Deputies to launch Brazilian Patent Reform: Innovation Towards Competitiveness. This report was developed through a long consultative process (including seven workshops in 2011 and 2012) by a technical team led by FGV’s Pedro Paranaguá. It proposes legislative reforms that would incorporate lawful TRIPS flexibilities into domestic law, enhancing access to generic medicines.
Economists and legal experts will join in a public discussion of the social and economic benefits of copyright users’ rights on September 26 from 2pm at American University Washington College of Law. The event will bring together top scholars in economics and law to discuss needs for empirical research on copyright users rights to inform law reform processes around the world. The first panel will review the empirical scholarship on the relationship between copyright limitations and exceptions and social and economic development and discuss new avenues for research that would improve our public understanding of the issue. The second part of the event will feature a roundtable discussion with regional copyright academics about the need for empirical evidence to promote balanced policy-making in regions where copyright reform initiatives are underway. The event will end with a keynote address by Sunil Abraham from the Center for Internet and Society on the relation between intellectual property flexibility and innovation in the telecommunications sector in India.
There are a series of meetings at the Creative Commons Global Summit this week on promoting the public interest and protection of the public domain in copyright reform.
PIJIP has been working for two years on research and advocacy promoting the incorporation of open and flexible general limitations and exceptions into copyright reform proposals. Below is a collection of links to related resources for easy access.
Yesterday it was announced that negotiators had reached “miracle” conclusion for a new international treaty for the visually impaired. This agreement was reached under conditions of unprecedented (although not always perfect) transparency and public participation. And according to initial stakeholder opinions voiced from across the spectrum – the end outcome is nearly universally considered to be “balanced” – a key objective of modern intellectual property policy. The process and substantive outcome lies in sharp contrast to the conditions of intense secrecy that surrounded the last multilateral agreement on IP to be concluded – the much maligned Anti-counterfeiting Trade Agreement (ACTA) , as well as the most important one currently ongoing – the Trans Pacific Partnership (TPP). (See generally Jeremy Malcolm, Public Interest Representation in Global IP Policy Institutions). And thus it is an appropriate time to question what international IP negotiators in the TPP and elsewhere should learn from the success of WIPO and the failure of ACTA.
As the Trans Pacific Partnership creeps toward an end game (which appears far off) it may be worth spending more time discussing positive proposals for amending the proposal in various ways. I have previously written on ideas for positive proposals from the perspective of the non-U.S. parties, both in the form of a short list of proposals and in a longer jointly-written article. This note focuses on copyright proposals for the TPP that should be of interest to U.S. negotiators in order to bring their proposal in line with their expressed policy goals as well as with recent copyright reform proposals discussed in Congress and by the Librarian of Congress.
In this year’s Special 301 report, the United States Trade Representative listed Ukraine as a “Priority Foreign Country” (aka PFC), triggering a 30 day countdown to initiate an investigation under Section 301 of the Trade Act to determine trade sanctions. 19 USC 2412(2)(A). This is only the second time that the U.S. has threatened a WTO-member country with sanctions as a PFC. And thus it is an appropriate time to ask what restrictions the World Trade Organization places on the operation of the Special 301 program. As described more fully below, any sanction of Ukraine, including removal of General System of Preferences (GSP) benefits, would likely violate WTO rules. Indeed, the listing of Ukraine as a PFC, and the more general operation of “watch lists” threatening sanctions for intellectual property matters, could be challenged under the WTO even prior to any sanction actually going into effect.