IP Bite: Comprehensive and progressive?

What you need to know 

• The CPTPP replaces the TPP following the United States’ withdrawal from the original agreement.
•  Compared to the TPP, the CPTPP is likely to result in less uniform intellectual property (IP) laws around the Asia-Pacific region and its impact on Australian law is likely to be minimal.

On 8 March 2018, 11 countries from around the Pacific Rim signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The signatories to the agreement, which emerged from the ashes of the Trans-Pacific Partnership (TPP), are Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam.

While it may be comprehensive and progressive on a number of other fronts, it seems the CPTPP is neither when its impact on IP laws is considered. In fact, the agreement “suspends” a number of provisions that were to have come into effect in respect of IP laws as part of the TPP. These include various IP protections insisted upon by the United States that would have required members to:

• ensure the patentability of new uses of known products;
• adjust patent terms on the basis of unreasonable regulatory delays, including delays in granting marketing approval for pharmaceutical products;
• extend the term of protection for copyright and related rights to 70 years after the author’s death; and
• require ISPs to take down infringing content once notified by rights holders.

These concepts are already familiar to Australian law, either as a result of Australia’s 2004 Free Trade Agreement with the United States or more recent law reform, including the Copyright Amendment (Online Infringement) Act 2015 (Cth). The CPTPP, even if these suspensions are lifted, is therefore likely to have minimal impact on IP legal practice in Australia.

However, the suspension of these provisions is expected to have a significant effect in delaying IP law reform in other countries around the Pacific Rim. For example, in countries such as Canada, where copyright protections only extend 50 years after the author’s death.

The CPTPP will come into force two months after at least six signatories ratify the Agreement.

Authors: Anita Cade, Partner; and Ted Talas, Lawyer.