IP Protections Necessary in NAFTA Negotiations

TAPP supports a robust, codified and enforceable IP chapter in any modernized NAFTA agreement. As NAFTA negotiators rush to reach a mutually beneficial modernized agreement, we urge the USTR to immediately focus attention on the Intellectual Property (IP) chapter.

It is critical that any agreement in principle includes the highest possible IP standards consistent with those put forth under the Trade Promotion Authority. Any IP Chapter that simply replicates the Obama administration’s weak text that was negotiated in the Trans-Pacific Partnership’s IP Chapter is insufficient protection. This was a bad deal for the 45 million American workers in the innovative and creative industries across the United States.

NAFTA renegotiations are an opportunity for this administration to ensure that American innovators and creators are secure from IP infringement by our trading partners. We believe that the Global Innovation Policy Center (GIPC) has it right and the framework should include the following: 

Any renegotiated language should include:

· A strong base term and scope of protection for patents, copyrights, trademarks, designs, and establishment of a statutory commitment to protect trade secrets.

· Exclusive rights for all forms of IP regardless of business models.

· Transparent, predictable, and carefully-defined rules for exceptions to rights across all forms of IP.

· A guarantee of technology-neutral patent eligibility for all industry sectors strictly based on the international norm of novelty, usefulness, and non-obviousness.

· Effective early resolution mechanisms that enable bio-pharmaceutical innovators to resolve patent disputes before potentially infringing products enter the market.

· Regulatory data protection periods for small molecules and biologic medicines that are consistent with U.S. law.

· Patent term adjustment and restoration to compensate for patent life lost to patent office delays, regulatory approval, and delayed reimbursement decisions.

· Predictable and transparent biopharmaceutical pricing and reimbursement rules that appropriately recognize and reward the value of new medicines.

· Strong legal protections for technological protection measures (TPMs) and against circumvention of TPMs for the digital marketplace.

· Provisions to penalize aiding and abetting of criminal copyright offenses.

· Full and effective implementation of the WIPO Internet Treaties.

· Protection of temporary copies.

· Prohibition of forced transfer of IP rights and government interference in commercial technology agreements.

· Ensure right holders are allowed to freely transfer and exercise rights.

· Civil and criminal causes of action and penalties for trade secrets theft.

Enforcement Measures

· Ensure fully effective injunctive relief and availability of statutory damages.

· Deterrent-level civil and criminal remedies in law, backed up by effective enforcement efforts, including ex-officio authority to seize goods and enforcement for goods trans-shipped through a party’s territory in order to combat trade in counterfeit goods.

· Criminalization of unauthorized camcording in theaters.

· Effective intermediary liability and appropriate safe harbors.

Codifying robust IP protections and enforcement mechanisms in renegotiated NAFTA language will stimulate innovative and creative growth, create high-value jobs and foster greater North American competitiveness. This is a unique opportunity to harmonize IP frameworks among our NAFTA partners and to elevate Canada and Mexico’s IP regime to be commensurate with the world’s leading economies – benefiting the three member nations.

IP protections provide the legal certainty needed for innovators and creators to make high-risk, high-capital investment into the newest creative content, cutting-edge technologies and next generation medicines. IP-intensive industries, besides supporting 45 million American workers, underpin the growth of the U.S. economy, accounting for $6.6 trillion in U.S. GDP and sustaining 52% of all U.S. exports.  We at TAPP urge the USTR to include updated IP language as an integral part of NAFTA renegotiations.

Ainsley Shea