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The Trans-Pacific Partnership (TPP) is a free trade agreement currently being
negotiated by the United States, Australia, Brunei Darussalam, Chile, Malaysia, New Zealand,
Peru, Singapore, and Vietnam.1 Canada, Mexico, and Japan have also expressed interest in
joining the Agreement.2
The United States joined the TPP negotiations in March 2008.3 President Bush notified
Congress of his intent to negotiate with the TPP members on September 22, 2008, and with
potential members Australia, Peru, and Vietnam on December 30, 2008.4 On November 14,
2009, President Obama announced the United States intention to engage with the TPP.5 On
December 14, 2009, Ambassador Kirk officially notified Congress of the administrations intent
to enter into negotiations on the TPP, with the objective of shaping a high-standard, broadbased regional agreement.6 The United States goals in joining the TPP negotiations seem to be
twofold: (1) joining a new Asian-Pacific trading bloc, and (2) shaping the TPP to be consistent
with the United States free trade agreements with other countries.7
The most recent publicly available draft text of the TPPs Intellectual Property Chapter is
dated February 10, 2011. The parties have not given any further information about the
Intellectual Property Chapter since that time. The draft text contains several differences from
existing U.S. law, including: the inclusion of transitory reproductions within the authors
reproduction right, slightly harsher anticircumvention provisions, a broad definition of
broadcasting that includes Internet or individually-chosen transmissions, presumptions of
copyright ownership, harsher actual and statutory damage provisions, more restrictive provisions
regarding court procedures for preliminary injunctions and forfeitures, and government authority
to prosecute civil copyright offenses. The draft text also fails to include limitation and exceptions
USTR Fact Sheet: Trans-Pacific Partnership, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE,
http://www.ustr.gov/about-us/press-office/fact-sheets/2011/november/united-states-trans-pacific-partnership (last
visited Feb. 2, 2012).
2
Statement by U.S. Trade Representative Ron Kirk on Announcements from Mexico and Canada Regarding the
Trans-Pacific Partnership, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, http://www.ustr.gov/aboutus/press-office/press-releases/2011/november/statement-us-trade-representative-ron-kirk-announ (last visited Feb. 2,
2012); Statement by U.S. Trade Representative Ron Kirk on Japans Announcement Regarding the Trans-Pacific
Partnership, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, http://www.ustr.gov/about-us/pressoffice/press-releases/2011/november/statement-us-trade-representative-ron-kirk-japans (last visited Feb. 2, 2012).
3
IAN F. FERGUSSON & BRUCE VAUGHN, CONG. RESEARCH SERV., R40502, THE TRANS-PACIFIC STRATEGIC
ECONOMIC PARTNERSHIP AGREEMENT 1 (2009), http://fpc.state.gov/documents/organization/135949.pdf.
4
Id.
5
USTR Fact Sheet: Trans-Pacific Partnership, supra note 1.
6
Economic Opportunities and the TPP, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE,
http://www.ustr.gov/about-us/press-office/fact-sheets/2009/december/economic-opportunities-and-tpp (last visited
Feb. 2, 2012). The USTR observed relevant procedures from the Bipartisan Trade Promotions Authority Act of
2002, 19 U.S.C. 3804, although this provision applies only to agreements entered into before July 1, 2007. Request
for Comments Concerning Proposed Trans-Pacific Partnership Trade Agreement, 70 Fed. Reg. 66,720 (Dec. 16,
2009).
7
FERGUSSON & VAUGHN, supra note 3, at 2.
to copyright, and includes language regarding the intersection of the importation and distribution
rights, the status of which is still unclear under U.S. law.
A detailed comparison of the February 2011 draft text of the TPP and U.S. law follows.
U.S. statutory citations are to Title 17 of the U.S. code unless stated otherwise.
TPP IPR
Section
Number
Art. 4.1
Art. 4.2
Art. 4.5
TPP Text
Art. 4.7(b)
Art. 4.8
Art. 4.9
Art.
4.9(a)(ii)(C)
Art. 4.9(a)
Art. 4.9(a) &
Art. 12.12(b)
Art. 4.9(c)
Art.
4.9(d)(viii)
Art.
4.10(a)(iii)
Art. 4.10(c)
Art. 5
Art. 6.5(a)
Art. 10.2
Art. 12.3(b)
Art. 12.4
Art. 12.7(b)
Art. 12.8
Art. 12.12(c)
Art. 13.1
Art. 15.1(a)
Art. 15.5(a)
imprisonment when criminal
infringement is undertaken for
commercial advantage or private
financial gain.
Each Party shall provide that items
that are subject to seizure pursuant to
any such judicial order need not be
individually identified so long as they
fall within general categories specified
in the order . . . .
Art.
16.3(b)(x)
Side Letter 1,
Section (a),
Footnote 35
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information sufficient to permit the
TPP provision.
service provider to locate the references
or links.
Jodie Griffin
Staff Attorney
PUBLIC KNOWLEDGE
1818 N Street, NW, Suite 410
Washington, DC 20036
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