Re: [Pub-forum] Trans Pacific PArtnership Intellectual Property Right Draft

On 13/11/2013 15:58, Andrew Reinbach wrote:
> Wikileaks has released the text of the TransPacific Partnership's prposal for intellectual property rights, a link to which you can see below.I have not read this proposal and the publishers on the list will have a better grasp of of its import than I do, so I pass it on for the list.
> Andy Reinbach
>
> https://wikileaks.org/tpp/
>    

[Some Brief notes at the bottom]
---Pardon my French, but what the hell does this mean?
"protect the ability of Parties to identify, promote access to and 
preserve the public domain;"
---If that isn't Googlespeak, I'm a Dutchman.

"Ensure that measures and procedures to enforce intellectual property 
rights do not themselves become barriers to legitimate trade"
---Goodbye geographical licensing?

"Promote operational efficiency of intellectual property systems, in 
particular through quality examination procedures *****during the 
granting of intellectual property rights****.]"
---Please examine the asterisked words and tell me what they mean!

"[NZ/CA/SG/CL/MY/VN propose. g. The protection and enforcement of 
intellectual property rights should contribute to the promotion of 
technological innovation and to the transfer and dissemination of 
technology, to the mutual advantage of producers and users of 
technological knowledge and in a manner conducive to social and economic 
welfare, and to a balance of rights and obligations."
---Again, which means?

"2. Each Party may adopt or maintain appropriate measures, provided that 
they are consistent with the provisions of this Chapter, to prevent the 
abuse of intellectual property rights by right holders or the resort to 
practices which unreasonably restrain trade or adversely affect the 
international transfer of technology."
---Can anyone list abuses by ***rights holders***?

"2. Each Party may adopt or maintain appropriate measures, provided that 
they are consistent with the provisions of this Chapter, to prevent the 
abuse of intellectual property rights by right holders or the resort to 
practices which unreasonably restrain trade or adversely affect the 
international transfer of technology."
---HUH?

"Article QQ.A.3: {General Provisions} <https://wikileaks.org/tpp/#QQA3>

Each Party shall give effect to the provisions of this Chapter. A Party 
may, but shall not be obliged to, provide more extensive protection for, 
and enforcement of, intellectual property rights under its law than is 
required by this Chapter, provided that such protection and enforcement 
does not contravene the provisions of this Chapter. Each Party shall be 
free to determine the appropriate method of implementing the provisions 
of this Chapter within its own legal system and practice."
---Green light to China et al?


"the Parties affirm that this Chapter can and should be interpreted and 
implemented in a manner supportive of each Party's right to protect 
public health and, in particular, to promote access to medicines for all."
---Time for a new American law? I suspect one will wait a long time for 
competitive pricing.

"(c) With respect to the aforementioned matters, if [US oppose: any 
waiver of any provision of the TRIPS Agreement, or any] [US propose: an] 
amendment of the TRIPS Agreement, enters into force with respect to the 
Parties, and a Party's application of a measure in conformity with that 
[US oppose: waiver or] amendment [US oppose: is contrary to the 
obligations of] [US propose: violates] this Chapter, the Parties shall 
immediately consult in order to adapt this Chapter as appropriate in the 
light of the [US oppose: waiver or] amendment."
---Don't say I didn't warn you :-)

"Article QQ.A.9: {Implementation of this Chapter} 
<https://wikileaks.org/tpp/#QQA9>

[CL/NZ/VN/AU/BN/SG/PE/MY/MX/CA^24 
<https://wikileaks.org/tpp/#sdfootnote24sym> propose; US/JP oppose: 1. 
Nothing in this Chapter shall prevent a Party from adopting appropriate 
measures to prevent: (a) the abuse of intellectual property rights by 
right holders or the resort to practices that unreasonably restrain 
trade or adversely affect the international transfer of technology; and 
(b) anticompetitive practices that may result from the abuse of 
intellectual property rights;, provided that such measures are 
consistent with this Agreement. [PE propose; CL/AU oppose: Nothing in 
this Chapter shall be construed to reduce the protection that the 
Parties agree on or have agreed on in benefit of the conservation or 
sustainable use of biodiversity.]]"

---And does the limitation to rights holders help some of the Amazon 
conditions?

"[US/MX propose; BN oppose: 4^30 
<https://wikileaks.org/tpp/#sdfootnote30sym>. Nothing in this Chapter 
shall require a Party to disclose confidential information the 
disclosure of which would impede law enforcement or otherwise be 
contrary to the public interest [PE oppose: or would prejudice the 
legitimate commercial interests of particular enterprises, public or 
private].]^31 <https://wikileaks.org/tpp/#sdfootnote31sym>"
---???

"Article QQ.A.12: {International Exhaustion of Rights} 
<https://wikileaks.org/tpp/#QQA12>

[CL/MY/NZ/VN/SG/BN/PE propose; US/AU/JP/MX oppose: The Parties are 
encouraged to establish international exhaustion of rights.]"
---opening the door to what?

"[CL/VN/PE propose: Each Party shall endeavour to provide relevant 
information to disseminate public domain, including appropriate tools 
that help to identify the [CL: extension] [VN: expiration] of the terms 
of protection of intellectual property rights.]"
---Google again?

"3. Actions to achieve the purposes referred to in paragraph 2, may 
include the development of publicly accessible data bases of registered 
rights, guidelines and other tools to enhance access to material in the 
public domain."
---A very big problem for many reasons and incorporating in broad brush 
many copyright books that have permanent or temporary difficulty in 
finding/accessing. Very reminsicent of Google plans.

"4. Each Party shall make its best efforts to promote cooperation among 
the Parties to identify and facilitate access to subject matter that has 
fallen into the public domain and share updated information related to 
right holders and terms of protection.]"
---Opt-out again?

Above are some paragraphs, then there is other IP until [these below 
have been moved to earlier position in final document apparently- 
orignally numbered G23 et seq]:

"Article QQ.G.1: {Copyright and Related Rights / Right of Reproduction} 
<https://wikileaks.org/tpp/#QQG1>

   1.

      Each Party shall provide^125
      <https://wikileaks.org/tpp/#sdfootnote125sym> that authors, [NZ
      oppose: performers], and producers of phonograms^126
      <https://wikileaks.org/tpp/#sdfootnote126sym> have the right^127
      <https://wikileaks.org/tpp/#sdfootnote127sym> to authorize or
      prohibit all reproductions of their works, [NZ oppose:
      performances], and phonograms, [^128
      <https://wikileaks.org/tpp/#sdfootnote128sym>] in any manner or
      form,[^129 <https://wikileaks.org/tpp/#sdfootnote129sym>]
      [VN/CA/NZ oppose: permanent or temporary (including temporary
      storage in electronic form)] [^130
      <https://wikileaks.org/tpp/#sdfootnote130sym>] [^131
      <https://wikileaks.org/tpp/#sdfootnote131sym>] [VN propose: it
      shall be a matter for national legislation to determine exceptions
      and limitations under which the right may be exercised]."

"Article QQ.G.2: {Copyright} <https://wikileaks.org/tpp/#QQG2>

Without prejudice to Articles 11(1)(ii), 11/bis/(1)(i) and (ii), 
11/ter/(1)(ii), 14(1)(ii), and 14/bis/(1) of the Berne Convention, each 
Party shall provide to authors the exclusive right to authorize or 
prohibit the communication to the public of their works, by wire or 
wireless means, including the making available to the public of their 
works in such a way that members of the public may access these works 
from a place and at a time individually chosen by them.^132 
<https://wikileaks.org/tpp/#sdfootnote132sym>"

"QQ.G.8 <https://wikileaks.org/tpp/#QQG8>

*[CA/JP/SG/BN/NZ/PE/CL/VN/AU*^140 
<https://wikileaks.org/tpp/#sdfootnote140sym> *propose:* Each Party 
shall apply, mutatis mutandis, Article 18 of the Berne Convention for 
the Protection of Literary and Artistic Works (1971) to the rights of 
authors, performers and producers of phonograms in [Section G]. A Party 
may provide for conditions, limitations, exceptions and reservations to 
the extent permitted in Article 14.6 of the TRIPS Agreement. ]"
---which needs sight of the TRIPS article before it is clear.

"Article QQ.G.X <https://wikileaks.org/tpp/#QQGXp>

No Party may subject the enjoyment and exercise of the rights of 
authors, performers and producers of phonograms provided for in this 
Chapter to any formality."
---Important and limits the value of any listing of rights required 
elsewhere?

"Article QQ.G.13: {Copyright and Related Rights / Rights Management 
Information} <https://wikileaks.org/tpp/#QQG13>

In order to provide adequate and effective legal remedies to protect 
rights management information:
---Those using any DRM will be interested in this.

"Article QQ.G.X <https://wikileaks.org/tpp/#QQGX>

   1.

      With respect to Section G, each Party shall confine limitations or
      exceptions to exclusive rights to certain special cases that do
      not conflict with a normal exploitation of the work, performance,
      or phonogram, and do not unreasonably prejudice the legitimate
      interests of the right holder.

   2.

      Article QQ.G.X.1 neither reduces nor extends the scope of
      applicability of the limitations and exceptions permitted by the
      TRIPS Agreement, Berne Convention [VN propose: Rome Convention,]
      the WIPO Copyright Treaty, and the WIPO Performances and
      Phonograms Treaty. ^180 <https://wikileaks.org/tpp/#sdfootnote180sym>"

---lawyers delight!

"Article QQ.G.Z <https://wikileaks.org/tpp/#QQGZ>

[CL/NZ/MY propose^184 <https://wikileaks.org/tpp/#sdfootnote184sym>: It 
is consistent with this Agreement to provide exceptions and limitations 
for temporary acts of reproduction which are transient or incidental and 
an integral and essential part of a technological process and whose sole 
purpose is to enable (a) a lawful transmission in a network between 
third parties by an intermediary; or (b) a lawful use of a work; and 
which have no independent economic significance.]"
---Worth noting.

---My notes:

---Well I got halfway and found the above worth commenting on [some I 
left unselected]. It really should be read to see if anything strikes 
that will cause problems, or threaten. It is inevitably aimed at big 
operators in the market place. It may also sum up the latest state of 
international copyright. It should be read by all those with some 
understanding of copyright, and read for understanding by all 
others---for them as a start to an appreciated of the basis of the 
publishing industry, as well as of the whole IP area.

While it is common in agreements including the US, I do want to 
emphasise that "public domain" is an American term that is not really 
recognised elsewhere, where out of copyright is the more commonly used. 
American pd includes recent works, eg US Government information, that 
falls into the pd. This is not often part of law in other countries.

And it is used to include recent material that is offered under free 
licence. These are *not* out of copyright just because the licence 
allows free use. These differences should be understood by those in 
publishing, which today has an almost automatic international element.

Joseph Harris