TPP Texts Show Suspended IP Provisions

Trade ministers negotiating the Trans-Pacific Partnership agreement have released the list of provisions they have suspended, including a range of articles related to intellectual property rights, such as patentable subject matter, test data protection, biologics, copyright terms of protection, and technological protection measures.

Ministers from the 11 countries issued a statement and the list of suspended provisions, after concluding their latest negotiations in the margins of the Asia-Pacific Economic Cooperation (APEC) meetings in Da Nang, Vietnam earlier this week.

The ministerial statement and list of provisions are available here. The TPP is now named the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

“The initial agreement spans 8,000 pages, and the fact that we were able to limit the suspension list to 20 means that we were able to keep the high standards set by the initial TPP agreement,” Japan’s Economy Minister Toshimitsu Motegi told reporters at a press conference on Nov. 11, as reported by Nikkei. “I think this will be a strong message for not only Asia but [for] other regions in the world.” Some 11 of the 20 suspended provisions were related to IP, which was considered one of the more difficult topics during the years of TPP negotiations. The United States withdrew from the agreement earlier this year. Final agreement was elusive by the end of the APEC meeting, and talks will continue, according to the ministerial statement.

The ministerial statement is reprinted below:

Trans-Pacific Partnership Ministerial Statement

11 November 2017

In the margins of the APEC meetings in Da Nang, Vietnam, the TPP ministers of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, agreed to the following statement on the Trans-Pacific Partnership.

1. When we last met in Ha Noi, Viet Nam on 21 May 2017, the Ministers of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Viet Nam, reaffirmed the balanced outcome and the strategic and economic significance of the TPP Agreement signed in Auckland on 4 February 2016 (hereinafter referred to as “the TPP”) highlighting its principles and high standards as a way to promote regional economic integration and contribute to the economic growth prospects of its member countries, and create new opportunities for workers, families, farmers, businesses and consumers.
2. In May, Ministers tasked officials to engage in a process of assessing options to bring the comprehensive, high quality Agreement into force expeditiously. Over the past several months, officials have worked to reach a balanced outcome that maintains the significant benefits of the TPP.
3. Ministers are pleased to announce that they have agreed on the core elements of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Ministers agreed to Annex I and II (attached) which incorporates provisions of the TPP, with the exception of a limited set of provisions which will be suspended. This text also incorporates a list of four specific items for which substantial progress was made but consensus must be achieved prior to signing.
4. Ministers agree that the CPTPP maintains the high standards, overall balance, and integrity of the TPP while ensuring the commercial and other interests of all participants and preserving our inherent right to regulate, including the flexibility of the Parties to set legislative and regulatory priorities. Ministers also affirm the right of each Party to preserve, develop, and implement its cultural policies. Ministers consider that the CPTPP reflect the desire of the Parties to implement the TPP outcomes among themselves.
5. Ministers confirm that the legal instrument proposed for the CPTPP allows the participants to act decisively in a timely manner to advance their shared objectives. Ministers reaffirm that the CPTPP demonstrates their firm commitment to open markets, to combat protectionism, and to advance regional economic integration.
6. Noting Article 6 of the CPTPP, Ministers shared the view that the scope of a review may extend to proposals to amend the CPTPP, to reflect the circumstances‎ concerning the status of the TPP.
7. Furthermore, Ministers decided that all the TPP‎ side letters signed among the 11 countries will be maintained in principle, unless the relevant Parties decide otherwise.
8. Ministers tasked officials to continue their technical work, including continuing their efforts toward finalising those items for which consensus has not yet been achieved, and legal verification of the English text and translation, to prepare finalised text for signature.
9. Ministers recognize that each country will need to pursue its own domestic processes, including ‎for public consultation, in advance of signature.

The list of suspended provisions is reprinted below:

Annex II – List of Suspended Provisions

1. Express Shipments – Article 5.7.1(f) – suspend second sentence
2. Investment Agreement and Investment Authorisation (ISDS applies to these)

9.1 Definitions – suspend “investment agreement” and “investment authorisation” and associated Footnotes (5 – 11)

9.19.1 Submission of Claim to Arbitration – a(i) B and C; (b)(i) B and C (investment authorisation or investment agreement), chausette, footnote 31

9.19.2 Submission of Claim to Arbitration, footnote 32

9.19.3 Submission of Claim to Arbitration – (b)delete investment authorisation or investment agreement

9.22.5 Selection of Arbitrators

9.25.2 Governing Law

Annex 9-L Investment Agreements

3. Express Delivery Services – Annex 10-B – suspend paragraph 5 and 6
4. Minimum Standard of Treatment in Article 11.2 – suspend sub-paragraph 2(b); footnote 3 and Annex 11-E
5. Resolution of Telecommunications Disputes – Article 13.21.1(d)
6. Conditions for Participation – Article 15.8.5 – Commitments relating to labour rights in conditions for participation
7. Further Negotiations – Article 15.24.2 – suspend “No later than three years after the date of entry into force of this Agreement” *

* footnote: The Parties agree that negotiations referred to in Article 15.24.2 shall commence no earlier than five years after entry into force of this Agreement, unless the Parties agree otherwise. Such negotiations shall commence at the request of a Party.

8. National Treatment – Article 18.8 footnote 4 – suspend last two sentences

9. Patentable Subject Matter – Article 18.37.2 and 18.37.4 (Second Sentence)
10. Patent Term Adjustment for Unreasonable Granting Authority Delays – Article 18.46
11. Patent Term Adjustment for Unreasonable Curtailment – Article 18.48
12. Protection of Undisclosed Test or Other Data- Article 18.50
13. Biologics – Article 18.51
14. Term of Protection for Copyright and Related Rights – Article 18.63
15. Technological Protection Measures (TPMs) – Article 18.68
16. Rights Management Information (RMI) – Article 18.69
17. Protection of Encrypted Program-Carrying Satellite and Cable Signals – Article 18.79
18. Legal Remedies and Safe Harbours – Article 18.82 and Annexes 18-E and 18-F
19. 19. Conservation and Trade (measures ‘to combat’ trade) – Article 20.17.5 – suspend “or another applicable law” and footnote 26
20. Transparency and Procedural Fairness for Pharmaceutical Products and Medical Devices – suspend Annex 26A – Article 3 on Procedural Fairness

 Items to be Finalised by the Date of Signature by consensus among all Parties for suspensions to take effect

1. State Owned Enterprises, Annex IV (Malaysia)
2. Services and Investment Non-Conforming Measures, Annex II – Brunei Darussalam – 14 – Coal – paragraph 3
3. Dispute Settlement (trade sanctions) – Article 28. 20 (Vietnam)
4. Cultural Exception (Canada)

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