In TPP, USTR Seeks To Boost Criminal Remedies Against IP Infringement

United States trade negotiators are seeking to set a “new regional standard” against intellectual property infringement in the Pacific region with the Trans-Pacific Partnership (TPP) agreement under negotiation. And among the new tools it is seeking is to boost governments’ ability to criminalise IP infringement based on government information as well as that of rights holders, a US trade official said this week.

In a 5 March call with reporters on the annual US Trade Representative’s report on “notorious” markets around the world, a US trade official gave a few details about the TPP negotiations, including civil and criminal procedures, and border measures.

The TPP negotiations have been conducted in relative secrecy, so few details of the draft agreement are officially released to the public.

The notorious markets report (IPW, North America, 6 March 2015) is an “out-of-cycle” review of the annual USTR Special 301 process of evaluating trading partners’ protection of US IP rights. The trade official was asked about countries with notorious markets that are part of the TPP negotiations. Countries negotiating the TPP include: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam.

“There are some markets in the report located in countries negotiating the TPP. In TPP, we are taking a strong and balanced role regarding copyright and trademark particularly with respect to enforcement,” the official said.

“One of the things we’re really actively seeking to ensure is that rights holders have an ability to act, [with] civil enforcement measures with appropriate remedies that are available for a copyright or trademark infringement, [and] to ensure that we have important criminal procedures and penalties that are also available for governments themselves to take action against notorious markets based on … information that they collect as well as information provided by rights holders,” he said. “These are some of the state-of-the-art roles that we are looking to promote in the TPP.”

USTR is also “looking for strong border measures against pirated and counterfeit goods, to make sure, for example, that governments have the ability to seize infringing … goods that they may find, even if there is no right holder complaint.”

“These are some of the tools that we’ve been seeking for many years, and we think the TPP will be a really important opportunity given the prevalence of counterfeiting and piracy in the Asia-Pacific region,” he said. It would be a “new regional standard for the right rules to combat these really pervasive problems that the notorious markets [report] highlights.”

But he also noted that TPP is not the only tool they have at their disposal to fight IP infringement.

“As to countries in TPP that have been on the Special 301 list for a number of years, such as Canada and Vietnam, we use all available tools to address IP protection and enforcement-related problems that we highlight in the report,” he said. “TPP is one tool that we look at, but of course we also have other existing bilateral arrangements, bilateral dialogues. We have the 301 report, we work with stakeholders to drive positive change. So we do a number of things and I wouldn’t say TPP is the only item, but every appropriate trade tool we have at our disposal we use as circumstances and facts warrant.”