TPP Sean Flynn American University Washington College of Law

Territorial Period 1 st Globalization 1880s -Paris, Berne 2nd Globalization 1950s+ -national experimentation 3 rd Globalization Unilateral (Special 301) -Multilateral (WTO) -Bilateral (eg US- Colombia) -Plurilateral (ACTA, TPP)

Post-TRIPS FTAs Australia Bahrain Chile Costa Rica Columbia* Dominican Republic El Salvador Guatemala Honduras Israel Jordan Morocco Nicaragua Oman Panama Peru Singapore

ACTA Japan United States Canada European Union (27 countries) Switzerland Australia New Zealand Republic of Korea Singapore Mexico Morocco

TPP United States New Zealand Singapore Australia Brunei Chile Malaysia Peru Vietnam [Mexico] [Canada]

P4 Brunei Chile Singapore New Zealnd

TPP: FTA v. Non FTA FTA Chile Peru Australia Mexico Canada Non-FTA Brunei Malaysia New Zealand Vietnam

Income High + Middle U.S. Canada Brunei Australia Mexico Low Peru Malaysia New Zealand Vietnam

Knowledge Importers v. Exporters Exporters U.S. Low Peru Malaysia New Zealand Vietnam Brunei Mexico Canada Australia

DEVELOPMENT ECONOMICS

Abbreviated Lit. Review infojustice.org/tpp Fink and Mascus, 2005 “Existing research suggests that countries that strengthen their IPR are unlikely to experience a sudden boost in inflows of FDI. At the same time, the empirical evidence does point to a positive role for IPRs in stimulating formal technology transfer.” “Developing countries should carefully assess whether the economic benefits of such rules outweigh their costs. They also need to take into account the costs of administering and enforcing a reformed IPR system” “We still know relatively little about the way technology diffuses internationally.”

Foreign Direct Investment infojustice.org/tpp Change Guatemala t=0.99 Peru t=-0.13 Nicaragua t=0.75 Source: World Bank Enterprise Survey.

Flexible Copyright and FDI infojustice.org/tpp

Flexible Copyright and GDP Growth infojustice.org/tpp

MONOPOLY ECONOMICS

“[T]he ability of patent holders to charge for the use of their patent rights, either in the form of royalties or through end product prices is constrained by the ability of the country granting the patent to pay. Poor countries will inevitably pay proportionately less than wealthy countries for the use of patent rights.” -Edmund Kitch (1994)

PriceVolumeRevenue PriceVolumeRevenue

PriceVolumeRevenue PriceVolumeRevenue

PriceVolumeRevenue PriceVolumeRevenue

U.S.

Norway

South Africa Income by Decile 0 5,000 10,000 15,000 20,000 25,000 30,000 35, Income Decile Annual Income, USD

Profit Maximizing SA

Generic Price Lowest Price for d4T+3TC+NVP for Poorest Countries Reported by MSF Brand Name Price | Generic Price Source: Médecins Sans Frontières, Untangling the Web of Price Reductions: a Pricing Guide for the Purchase of ARVs for Developing Countries. Editions 1-9, published 2001 through 2007.

US Brazil1480 South Africa India Legal Price (US$) CPP Price Coldplay: Viva la Vida (CD) GDP/ Capita US46,857 Brazil8,200 South Africa5,824 India1,031

US Russia Brazil South Africa India Mexico Legal Price (US$) CPP Price Pirate Price Pirate CPP The Dark Knight (DVD, 2008)

HOT ISSUES

Temporary Copies TPP Each Party shall provide that authors,... have the right to authorize or prohibit all reproductions... permanent or temporary (including temporary storage in electronic form). Colombia FTA (A) transmitting, routing, or providing connections (B) caching carried out through an automatic process; (C) storage at the direction of a user (D) referring or linking users to an online location

Copyright Term Colombia FTA 70 years “other than life of the author” Not published w/in 50 years, then 70 yrs from date of creation TPP 95 years “other than life of the author” Not published w/in 25 years, then 120 yrs from date of creation

Technological Protection Measures FTA/TPP Each Party shall confine exceptions and limitations to measures implementing subparagraph (a) to the following activities... Colombia L&E Bill Parody Disability Access Libraries Educational Institutions

Internet Retransmission FTA/TPP No Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal. Colombia Supreme Court held unconstiutional

Parallel Importation FTA Each Party shall provide... the right to authorize or prohibit the importation into that Party’s territory of copies of the work... made without authorization, or made outside that Party’s territory with the authorization of the author US Law Kirtsaeng v. John Wiley & Sons (pending)

Damages FTA “Pre-established damages shall be in an amount sufficiently high to constitute a deterrent “ U.S. “the copyright owner may elect... instead of actual damages and profits, an award of statutory damages... in a sum of not less than $750 or more than $30,000 as the court considers just.”

Patentability India 3(D) The following are not inventions within the meaning of this Act,... the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance TPP ARTICLE 8: PATENTS “patents shall be available for any new forms, uses, or methods of using a known product;... even if such invention does not result in the enhancement of the known efficacy of that product.”

NumberRelevant Claim ,648,497RTV moleculeProductNew Chemical Entity ,674,882use of RTV with a PI for inhibiting HIVUse 5,635,523use of RTV with an RTI for inhibiting HIVUse 5,541,206use of RTV for inhibiting HIVUse 5,846,987combination of RTV and an RTIProductCombination 5,886,036combination of RTV and a PIProductCombination ,037,157use of RTV to boost a PIUse 6,703,403use of RTV to inhibit cytochrome P450 monoxygenaseUse ,914,332LPV moleculeProductNew Chemical Entity 6,284,767use of LPV with RTIs or PIsUse ,232,333soft-gel formulation of RTVProductFormulation 6,458,818soft-gel formulation of RTV & LPVProductFormulation 6,521,651soft-gel formulation of LPVProductFormulation * * U.S. Patents related to Kaletra

Patentability TPP Plant and animals and methods Andean Community Cannot patent “any living thing”

Patentability TPP Disclosure complete when other can make Andean Community Art. 3. Protect TK and genetic resources.

Medicines Issues TPP “Access window” + data exclusivity, linkage, patent term extensions Colombia FTA, May 2007 Concurrent Data Exclusivity Permissive linkage

Limitations and Exceptions TPP “each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.” Global Expert Network “In addition to uses specifically authorized by law, any use that promotes general economic social and cultural objectives is not infringing if its character and extent is appropriate to its purposes and does not unduly prejudice the legitimate interests of the copyright owner, taking account of the legitimate interests of creators, users, third parties and the public.”