[Ecommerce] IP& Trade: "Key precedents to be included in the other FTAs...including the FTAA"

[Manon Anne Ress]

I have not seen the Chile FTA text but the industry report is full of 
information:
US-Chile FTA: The Industry Functional Advisory Committee on IPR for 
Trade Policy Matters (IFAC-3) Report is posted at:
http://www.ustr.gov/new/fta/Chile/ac-ifac3.pdf

Membership of the IFAC-3 Committee: IIPA, The Gorlin Group, Law Offices 
of Hope H.Camp (reprensent Eli Lilly), Cowan, Leibowitz &Latman, PC, 
Anheuser-Busch, Biotechnology Industry Organization, Covington and 
Burling (represesenting Microsoft), Merck, Pfizer, Pharmaceutical 
Research and Manufacturers of America, Business Software Alliance, 
Procter &Gamble...and others.

IFAC-3 believes this agreement "represents significant progress" but 
some elements "fall short" of providing the levels of protection 
provided in the Singapore FTA.  For IFAC the "deficiencies" in IP "can 
be addressed in the agreement prior to signature".  "[o]ur goal in the 
negotation of an FTA is to set a new baseline for future FTAs, including 
the FTAA."

Trademarks pp6-7
Domain Names on the Internet p.7
Two provisions:  one requires the UDRP and the other requires "each 
party to provide public access to "reliable and accurate" contact 
information for each domain registrant.  These provisions combine to 
combat the problems of copyright and trademark cyber-piracy"

Geographical Indications p.7
"IFAC-3 also supports the Chile FTA text because it requires a very 
systematic and fair opportunity to object to the protection of 
geographical indications"

Copyright and Related Rights pp 9-12 of the report
Regarding Copyrights, the goal was to get IP protection to a higher 
level than the level of protection set in the TRIPS, NAFTA etc.  WCT, 
WPPT and DMCA...Chile has agreed to extend its term of protection to 
life of the author plus 70 years for most works the report mentions the 
the industry wanted 95 years.

The industry is also concerned by the exception allowing reverse 
engineering of software to achieve interoperability and to allow 
encryption research- "the text omits the key condition that if the 
particular element of the computer program is already available, the 
exception to circumvent is not allowed"...for the industry there are too 
many "dangerous loopholes" (see p.12) but the "copyright text achieves 
all that US industry sought in this negotiation".

Patents pp 13-15
The industry (members such as Pfizer, Merck, Eli Lilly etc) is quite 
pleased (but did not like the Chilean Government's decision to approve a 
few copies of products during the negotations). For example Article 
XX09.3 places restricitons on how a third party may use patented 
invention to generate data needed for the marketing approval of generic 
pharmaceutical products etc..

Data exclusivity p.15-16
"The Chile FTA also imposes a second set of obligations []that prohibit 
generic drug approvals during the term of the patent covering the 
pharmaceutical product (i.e., "linkage')"...

Enforcement 16-22
Very very important:  "the updated levels of protection afforded in this 
agreement will be of little value to US companies without the capability 
and willingness of the Chilean government-any government for that 
matter- to enforce those standards..."

Regarding "limitations on Liability of Service providers p.21, the 
industry states: "having in place a system of liability of ISPs is the 
key to ensuring the cooperation that is essential to making the Internet 
safe for the transmission of protected copyright products".  The 
industry "commend the negotiators []and believe that it must be 
replicated in other FTAs"

We will probably be reading the same thing written by the same people 
about the other FTAs in the work (Morocco, South Africa, Australia, 
Central America, etc).

Text itself will be out next week.

Manon
-- 
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176