The Trans-Pacific Partnership, or TPP, is a multinational trade deal that may or may not be signed into law this year. It’s been the subject of heated political debate. Let’s take a look at what the treaty has to say about trademarks and copyrights.
If you’re looking for some light reading, the TPP’s Intellectual Property chapter can be found here. It would be outside the scope of this blog post to discuss every provision, so I’m going to highlight some of the most important or controversial terms.
In a lot of ways, the TPP’s trademark provisions will be familiar to those who are comfortable with U.S. trademark law. The TPP requires certain things that the U.S. (and most other countries) already have: a system of trademark examination and registration (Article 18.23), an electronic system (Article 18.24), and a trademark classification system based on the existing international classifications (Article 18.25.) Much as they are in the U.S., trademarks would be registered for 10 years (or, more accurately, not less than 10 years – Article 18.26.)
Notably, the TPP would expand the scope of trademark protection in some countries (Article 18.18 – 18.20). In the U.S., we’re used to “nontraditional” trademarks, such as sound marks, scent marks, collective trademarks, certification marks (think of the Good Housekeeping Seal of Approval), and geographical indications. An example of the latter is “Florida” for oranges. These are not accepted in all TPP signatory countries. The TPP requires those types of marks to be registrable.
In the U.S., there are certain exceptions to trademark law, including fair use. The TPP (Article 18.21) states that a party “may provide limited exceptions,” but is not required to do so. This may be read as weakening the fair use protection enjoyed by the public, but the TPP’s language on this point is ambiguous.
Another controversial section relates to the “well-known marks doctrine.” This doctrine holds that if a mark is not in use in one nation, but is well-known there and is in use elsewhere, that mark is entitled to protection. For example, if, say, Burger King isn’t in use in Canada (meaning, if there are no Canadian Burger King restaurants), but the trademark BURGER KING is nonetheless well-known there due to its use in the U.S., that trademark would be entitled to protection in Canada despite its nonuse in that jurisdiction.
Not all U.S. courts agree that the well-known marks doctrine is in force in the U.S. However, Article 18.22 of the TPP would appear to make the well-known marks doctrine the law of the land in the U.S. and in other TPP signatory countries. This would be the case even if the goods are not identical, and even if the mark isn’t registered anywhere. This can be understood to be expanding the rights enjoyed by large, internationally-recognized brands.
As in the trademark section, the TPP in some ways would bring the other countries into line with U.S. trademark law. Article 18.63 requires a copyright term of the life of the author plus 70 years – the same as in current U.S. law. This is longer than the copyright term in some other signatory countries, meaning that certain works would stay out of the public domain for a longer period of time.
There’s some logic to internationally universal copyright terms. It doesn’t necessarily make sense for a work to be protected by the copyright in the U.S. but a part of the public domain in Canada. Incongruent terms can be confusing and frustrating for creators, consumers, and distributors of media. However, for those who believe the U.S. copyright term is too long, this will not be seen as a welcome effect of the TPP.
Copyright fair use is obliquely referred to in the TPP. Article 18.66 states “shall endeavour to achieve an appropriate balance in its copyright and related rights system,” going on to include, as examples, language similar to that found in the fair use provision of the U.S. Copyright Act. However, commentators have pointed out that the “shall endeavour” language is not exactly a requirement, and it remains to be seen how this language is actually interpreted and put into place.
The U.S.’s Digital Millennium Copyright Act has been controversial since its adoption into law. Much like the DMCA, Article 18.68 of the TPP requires signatories to impose criminal penalties for the circumvention of “Technological Protection Measures.” Ciara N. Mittan and Andrew P. Bridges have stated that these provisions could “stifle innovation, scientific research, and other beneficial uses of locked materials by the public.” The problem, in essence, is that criminalizing the activity of getting around copyright protection measures (such as website paywalls) allows courts to sidestep the question of whether there was a justified reason for the copyrighted work to be made available, such as fair use.
Finally, the TPP requires “criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale” whether or not the infringer has gained a commercial advantage or made money off the infringement. Depending on how it’s interpreted, this could mean an expansion of criminal penalties in the U.S. for actions like non-commercial file sharing.
To summarize, the TPP would potentially expand the rights enjoyed by large-scale trademark and copyright holders. Smaller entities may benefit as well, but it’s the larger entities who have the most to gain.