Mira Burri,’The Regulatory Framework for Digital Trade in the Trans-Pacific Partnership Agreement’, in: Peter Roffe, Xavier Seuba (eds.), Current Alliances in International Intellectual Property Law-Making, 66-87 (ICTSD/CEIPI Geneva 2017).
Burri – The Regulatory Framework in the Trans-Pacific Partnership Agreement
Background
Copyright protection plays a central role in the regulating of digital trade, or electronic commerce and beyond, i.e. the internet and social media. Existing analogue trade rules established under the GATT and WTO face new challenges that affect goods, services and intellectual property alike, which are increasingly being produced in transnational value chains. Incremental progress in addressing issues of market access and trade facilitation as well as data protection and market segmentation has mainly been achieved through in preferential trade agreements, as multilateral framework agreements have not yet addressed these challenges. The 1996 WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) provide protection from and technical remedies against unlawful dissemination and reproduction of digitally stored work and performances. These agreements and WTO law however do not address fundamental issues of data ownership, access to data, data storage and data protection. Nor do multilateral agreements address modalities of electronic trade, although a work programme was adopted by the WTO in 1998 and plurilateral negotiations on e-signature, authentication, spam and online consumer protection are expected to yield a negotiating text by the end of 2020. The Transpacific Partnership Agreement (TPP), termed the Comprehensive and Progressive Agreement of Transpacific Partnership (CPTPP) upon departure of the United States in 2016, ranges among the pioneering agreements on the subject and informs negotiations in other fora, including those between the US and Europe (TTIP in the past) as well as with China, addressing problems of electronic commerce, market access and data protection. It is important to note that intellectual property is one aspect among many, and can no longer be dealt with in isolation from services, trade in goods and competition law. Digital trade offers a good example of how norms travel these days in the field of IPRs and beyond, being part of information law at large (cf cluster of this Anthology on information law).
Summary
The paper, published in 2017, elaborates on the diminishing boundaries between goods and services, a distinction upon which the multilateral system of 1995 relies and which also explains the fact that the WTO thus far has not been able to cope with the post-Gutenberg age of the digital economy, being limited to a work programme. Initial efforts were made in the United States’ “Digital Agenda” in bilateral free trade agreements, and from there found their way in other trade agreements, benefitting from conceptual work done by the US and in the WTO. Chapters on intellectual property have become an important ingredient in addressing the digital economy beyond the WIPO WCT and WPPT Treaties. The EU – Canada Comprehensive and Economic Trade Agreement (CETA) was a landmark achievement in the field, strengthening in particular the commitments to interoperability and privacy. The main emphasis of the paper is on the Transpacific Partnership Agreement (TPP), which was eventually concluded in 2018 as the Comprehensive and Progressive Transpacific Agreement (CPTPP) due to US withdrawal by the Trump Administration in 2017. The paper focuses in particular on the strengthening of intellectual property rights and their enforceability in digital trade. A special chapter on e-commerce seeks to secure net neutrality and limit restrictions on data transfer and storage, building upon the principles of national treatment. Provisions are included addressing the protection of personal data and the basis of equivalence. Rules relevant to digital trade are found throughout the Agreement however, upon which the author expounds in a section on telecommunications and other regulatory areas. These results are compared to the parallel efforts to regulate digital trade in the Transatlantic Trade and Investment Partnership (TTIP), negotiations for which stalled under the Trump Administration but are likely to be taken up again in 2021. Differences on data protection and security and the French concept of cultural exceptions loomed large at the time, translating into differing views on levels of protection under intellectual property rights on either side of the Atlantic. Finally, the paper turns to the implications of plurilateral trade in services negotiations (TISA) before providing an overall appraisal of the CPTPP digital trade regulation. The high standards achieved are unlikely to materialize in other fora and agreements, but the template of the agreement is likely to diffuse and further develop.