Intellectual property in TPPA: Is it really a win-win? — Chew Phye Keat

Source: The Malay Mail Online


TPPA-copyAUGUST 25 — When you walk past a Body Shop outlet, your nostrils would almost inevitably pick up the perfumed scents of the cosmetic shop.

What you might not be aware is that the aromas could soon be “trademarked,” allowing the cosmetics chain to protect its scents.

Such a scenario, where even sounds and smells are protected, is becoming increasingly likely amid global moves to enhance intellectual property (IP) protection.

This is especially so as several countries, including Malaysia, inch towards final ratification of the Trans-Pacific Partnership Agreement (TPPA).

The pact seeks to lower trade barriers and increase economic integration and engagement between like-minded countries: the United States, Brunei, Chile, New Zealand, Singapore, Australia, Canada, Japan, Malaysia, Mexico, Vietnam and Peru.

While it has been signed by all 12 Pacific Rim countries, it is awaiting ratification by the member countries before it can be put into effect.

At a larger level, it’s good news, of course. The TPPA offers higher likelihood of economic growth by ensuring a freer flow of goods, services and people.

But like any trade deals, there is no free lunch. The pact wants to harmonise laws and systems across the 12 economies which are at vastly different developmental stages.

And when it comes to the issue of IP protection, the challenges are there for the developing countries like Malaysia.

That is because TPPA demands a higher standard of IP protection than what is observed now by most countriesvia the Agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS. It has been called the “gold standard” for IP laws and covers all members of the World Trade Organisation.

The IP chapter of TPPA raises the bar, enacting what is sometimes called the “TRIPS plus” standards typically practised in the developed nations like US and Canada.

For instance, the TPPA wants to protect smells like the Body Shop scents, and sounds like the fanfare that accompanies movie studio 20th Century Fox’s logo in the cinemas or even the motorbike hum of a Harley-Davidson.

In copyright, the TPPA seeks to extend the period of protection from the current 50 years following the creator’s death, to 70 years.

That extra 20 years can prove significant for a small company or a small-medium sized enterprise seeking tobuild its own product on the back of an existing intellectual property which has expired.

In short, poorer economies may not have the luxury of waiting another two decades.

Patents is an especially sore point, because it covers one especially important product: medical drugs.

Under TRIPS, generic versions of patented drugs that address anything from malaria to cholesterol can be produced 20 years after the original patent is filed. It is one reason why we enjoy access to selected low-cost, life-saving medicines today.

TPPA, however, seeks to extend the patent protection by up to five years on certain criteria — this can be an interminable time frame if you’re a poor person waiting for an affordable medicine to save your child’s life.

On the surface, it is argued, such expanded IP laws and regimes encourage innovations and creativity by giving their creators better ownership and ensuring that they enjoy longer the rewards of their inspiration, efforts and research. After all, it is further argued, the reciprocity ensures creators of both sides of the economic divide get the same deal.

But perhaps that is not the point.

If a TPPA country is more a net user or importer of IP,obviously stronger IP standards will protect the innovators in more developed countries, building up walls around their ideas and products. We come back to the point again, wasn’t TRIPS good enough at least in the area of periods for IP protection? If not, why not?

There are also ironies in the stricter IP obligations of the TPPA. For example, some countries in Asean are looking to cut the sale of tobacco products by forcing manufacturers to sell their products in plain packaging as part of wider efforts to discourage smoking.

But this could be seen as a hit on IP, with cigarette makers arguing that it infringes on their logos and trademarks. It is a battle that has been keenly fought in countries like Australia and Britain.

The TPPA offers much benefits. Malaysia can get better access to a market of 800 million people with a combined GDP of US$27.5 trillion (RM111.1 trillion). The country stands to gain US$41.7 billion increase in exports and US$26.3 billion in income gains by 2025.

But how prepared is it to put up with the less visible losses as a result of the pact’s IP requirements?

Member nations need to think hard about the agreement’s ramifications and balancing the good and the bad of the TPPA, especially in the field of IP.

* Chew Phye Keat is president of Asean Intellectual Property Association and Malaysian Intellectual Property Association.


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