Another look at the TPPA’s IP chapter
By Dr Shawn Tan January 25, 2016
- Not just about pharmaceuticals and biologics, but other areas too
- All social media-enabled services responsible for policing IP infringements
THE Trans-Pacific Partnership Agreement (TPPA) has been getting a lot of attention recently, as the text has been released after years of secret negotiations.
In Malaysia, there is a special sitting of Parliament scheduled to debate the merits of the TPPA.
I had the opportunity to read the TPPA chapter (PDF) on intellectual property (IP) rights recently.
While the chapter itself is merely 74 pages of legalese, in order to make sense of it, I had to read relevant parts of other treaties – for example, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Paris Convention, Berne Convention – and so on, as these are regularly referenced from within the chapter.
Additionally, I read up on the local legislation such as our Copyright Act, Patent Act, etc., to compare the differences between pre-TPPA and post-TPPA scenarios.
Let’s just say that there was a lot of reading involved for a single chapter, and I can appreciate why few have a real grasp of the entire agreement, and also why many are asking for more time to study it instead of rushing into signing in February.
Politicians and civil society have raised issues of biologics and pharmaceutical patents when it comes to the IP chapter.
However, I would like to point out that the IP chapter goes much further than pharmaceuticals and biologics, and I’m afraid that some other issues may have been overlooked.
I have commented on the issue of copyright extensions previously, and I won’t repeat those remarks here.
However, I’m interested in highlighting some other changes that piqued my interest while I was digesting the chapter.
Sounds and scents
Trademarks are undergoing interesting reform. Trademarks are currently protected under the Trademark Act 1976 in Malaysia.
However, our current law merely protects marks such as unique names, signs, and geographic indications.
Under Article 18.18 of the TPPA, each government must not deny a trademark application for merely being a sound and must also make best effort to register scents.
This means that trademarks are being extended to both sounds and smells. As an example, instead of merely protecting the name of Satay Kajang, one may soon be able to protect the unique smell of burnt satay and also the unique sounds made while it roasts.
Industrial design is often missed when discussing IP as it is not primary protection. Industrial design is currently protected under the Industrial Design Act 1996 in Malaysia and typically covers designs such as product packaging and furniture, but not textile designs.
A PwC study (PDF) shows that the Malaysian textile sector is set to register the largest gains in export growth due to the trade effects of the TPPA. I’m sure that our local textile industry is happy to hear this.
Reading Article 18.55 of the TPPA together with Article 25.2 of TRIPS, each government must ensure that textile designs are protected under industrial design.
Also, reading it together with Article 26.3 of TRIPS, the period of protection is being extended to 10 years from the current five years.
As a result, while the textile industry in Malaysia is set to grow, it will have to pay licensing fees for the textile designs that are manufactured, even for designs that are way past season.
Under the Copyright Act 1987 of Malaysia, Internet service providers (ISPs) are burdened with the responsibility of policing copyright infringements. If a rights-holder complains to the ISP of an infringement, the ISP is required to take certain actions as detailed in the law.
Under Article 18.82 of the TPPA, the definition of ISP is being extended to include online services that store content; and provides links to any other online location using hyperlinks.
That pretty much describes every modern online service.
What this means is that any online service that provides user-generated content, which is pretty much any social media-enabled service, will now be responsible for policing copyright infringements. It even covers content that is automatically scraped and aggregated.
Trade secrets are mentioned only in a single article within the entire chapter. Also, there is no specific Malaysian law that deals with trade secrets.
Therefore, it is easy to understand why this issue has gone under the radar.
Under Article 18.78 of the TPPA, each government must enact specific laws to deal with the unlawful disclosure of trade secrets and must provide for criminal procedures and penalties if such a law is breached.
I do not think that it is right for the government to incarcerate someone to protect the commercial interests of corporations. Unlike state secrets, trade secrets do not endanger the public nor harm the rakyat (citizenry). Think on that for a minute.
These are just some of the interesting ones but there are many other changes and I would recommend anyone with an interest in IP to read the chapter.
Personally, I think that the biggest beneficiaries of the IP chapter are the agents and lawyers. They will definitely see more business.
As someone who minds his own business, I will have to get myself ready for these changes as many of the provisions must come into force within two to three years after signing.
Maybe it’s time for me to start an IP firm.
Dr Shawn Tan is a chartered engineer who has been programming since the late 1980s. A former lecturer and research fellow, he minds his own business at Aeste while reading Law. He designs open-source microprocessors for fun. He can be reached via Twitter as @sybreon.
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