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IP chapter of TPP: Does it break new ground or tip the balance?

Step into the cinema to catch the latest 20th Century Fox film, and the first thing that you'll hear is the triumphant "pah-pah-pah" fanfare that accompanies the movie studio's logo.

Those familiar strains could be turned into a trademark one day in your country (if it is not already one), which means it will enjoy the legal protection like, say, the golden arches of McDonald's.

This is one of the possibilities emerging amid global moves to increase protection for intellectual property (IP). At a larger level, it's good news, of course: Tighter IP laws and regimes encourage innovation by giving creators better ownership rights and ensuring that they enjoy the rewards of their inspiration, efforts and research.

As Singapore prepares to mark IP Week this week, many eyes will be focusing on the efforts to ramp up the protection of IP, especially in Singapore, where much is being done to encourage innovation.

One issue in particular is challenging IP protection - the rise of mega-regional free trade deals.

ONEROUS FREE TRADE DEALS

The last few years have seen efforts to hammer out massive regionwide free trade agreements (FTAs) that seek to lower trade barriers and increase economic integration. One of the largest free trade zones being worked out is the Trans-Pacific Partnership (TPP) agreement, which is awaiting ratification by the 12 member countries.

The benefits of freer trade cannot be denied. But member nations need to think hard about the TPP's ramifications. Will it lead to a less-level playing field for poorer nations? What about contradictions in the stricter IP obligations of the TPP?

Like other regional FTAs, the TPP aims to facilitate economic growth by ensuring a freer flow of goods, services and people. But like any free trade deal, it comes with a quid pro quo, one of which is the harmonising of certain laws and systems between countries at different developmental stages. And this is where the issue of IP protection comes into play.

Under the TPP agreement, member countries will have to adhere to a regime of IP protection that is stricter than what most of the world observes. This is the Agreement on Trade-Related Aspects of Intellectual Property Rights, or Trips. It has been the "gold standard" for IP laws and covers all members of the World Trade Organisation.

The IP chapter of TPP, however, ups the ante with stricter IP regimes typical of the more developed countries like the United States and Australia. In effect, the TPP is enacting a "Trips plus" benchmark. Some examples follow.

In the area of trademarks, the TPP agreement seeks to widen the protection of trademarks to include sounds and smells - remember the 20th Century Fox fanfare? - which require more complex technologies to collect, record and protect.

In copyright, the TPP agreement seeks to extend the period of protection from the current 50 years following the creator's death, to 70 years. That extra 20 years can prove significant for a small company or an SME (small and medium-sized enterprise) seeking to push out products as quickly as possible. Poorer economies may not have the luxury of waiting another two decades.

Developed nations like the US, Canada and Australia are pushing for such tighter IP protection. Their argument is that it is a fair deal since the products of these poorer countries would also be protected in the US and Australia, for instance.

IP USERS VERSUS CREATORS

But many of the members of the TPP agreement are users rather than creators. While innovators in the more developed countries will benefit from the greater protection, signatories from the less-developed countries will find the restrictions onerous.

In Asean, for example, many countries are already struggling to meet their IP obligations under Trips. Resources have to be poured into the battle against counterfeiting and pilfering of patents. A "Trips plus" will require even more resources, which poorer nations can ill afford.

Stricter and longer protection of marketable products and lucrative patents will also raise the bar for entrepreneurs and SMEs, delaying the economic growth that many countries so desperately need.

The benefits of freer trade cannot be denied. But member nations need to think hard about the TPP's ramifications. Will it lead to a less-level playing field for poorer nations? What about contradictions in the stricter IP obligations of the TPP?

Some Asean members, for example, have started to consider plain packaging of tobacco products so as to discourage smoking. This can be perceived as a hit on IP, with cigarette makers arguing that it infringes on their logos and trademarks.

It took years of negotiation to arrive at Trips, a global benchmark that satisfies most, if not all, parties reasonably; surely this will suffice for an FTA seeking to break down barriers, not build up more.

In a world that is aiming to give poorer nations and their people a leg up, perhaps it is time to consider a little creativity in the protection of innovation - keeping the status quo.

•The writer is the current president of the Asean Intellectual Property Association and the Malaysian Intellectual Property Association.

A version of this article appeared in the print edition of The Straits Times on August 23, 2016, with the headline 'IP chapter of TPP: Does it break new ground or tip the balance?'. Print Edition | Subscribe