Legal Analysis

categorized by issue — for the full list, go here.

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General

Investor-State Dispute Resolution

Existing Rights & Obligations (QQ.A.6)

The pre-existing treaties and agreements that the signatories are required to join/ratify. Interestingly, some of the Asian countries are pushing for language that include the phrase “access to knowledge,” to balance out the otherwise IP maximalist push.

Copyright/Internet

Copyright Terms (QQ.G.6)

DRM / TPM (Anti-Circumvention of Technological Protection Measures) (QQ.G.12 / QQ.H.4.Y)

The US is attempting to export the law that prevents you from unlocking your cellphone.

Pre-Established Copyright Damages for General Deterrence (QQ.H.4.X / QQ.H.4.Y.15)

The TPP would require signatories to establish statutory damages systems for the purposes of deterring “similar infringements in the future,” like the US system that resulted in six-figure judgments against individual downloaders sued by the RIAA.

Intermediary Liability (QQ.I.1 / QQ.H.1)

Remember SOPA/PIPA & ACTA? It’s that whole thing again. This section “is very much in flux” (in the words of the EFF), but it appears that the US is pushing for a notice-and-takedown regime similar to that in the DMCA.

Temporary Copies (QQ.G.1)

The Three Step Test (QQ.G.X / QQ.G.Y)

The Three Step Test, if subverted, can “serve as a ceiling on rights” for users — although the Three Step Test can be good for users, it is structurally very different from US fair use. In short, pressing on the Three Step Test in the TPP, omitting mention of fair use, and adding in numerous other restrictive US-style provisions results in US-style copyright without fair use, the most important limitation on US copyright.

Parallel Importation, Exhaustion of Rights (QQ.G.3 / QQ.G.17)

Criminal Copyright (QQ.H.7)

Patent

Patentability: Access to Medicine / Evergreening

Patentability: Surgical Methods / Medical Procedure Patents

Patentability: Software Patents

Compulsory Licenses on Patents

Trademark

Internet Domain Names (Q.Q.C.12)

Geographical Indications (Q.Q.D.14)

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