On July 17, 2017, the Trump Administration published its Objectives for NAFTA Renegotiation, following up on its earlier notification to Congress that it planned to renegotiate NAFTA (1994), the first U.S. trade agreement to include IP protections. On July 19, trade officials from the three NAFTA countries announced an aggressive timetable to begin renegotiations on August 16 and conclude by early 2018. The U.S. Trade Representative provided a public comment period titled “Negotiating Objectives Regarding Modernization of NAFTA,” which ended on June 14, 2017. The renegotiation of older trade agreements such as NAFTA could result in the inclusion of strengthened protections for IP owners.
The existing IP provisions in NAFTA of interest to information technology companies include copyright provisions for the protection of software as literary works and data as compilations. In addition, under NAFTA, North American copyright owners of software and sound recordings can prohibit rentals of their products.
NAFTA also provided some patent protection for pharmaceutical and agricultural-chemical inventions, benefiting U.S. pharmaceutical companies. For example, countries must allow product patent protection for drugs and chemicals, for which product patents were previously unavailable. NAFTA also included enforcement requirements, including criminal procedures and penalties for willful trademark or copyright infringement. And, it provided customs departments with the ability to block counterfeits and pirated copyright goods.
On the other hand, NAFTA countries may exclude patents on diagnostic, therapeutic and surgical methods as well as biological processes for the production of plants or animals. Moreover, countries may exclude patents to protect public order, human life and the environment.
The administration’s July 17, 2017 Objectives for NAFTA Renegotiation include accelerated implementation of the WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS)agreement (1995), and IP protections for emerging technologies and new methods of distributing products embodying IP for facilitating digital trade. Also included in the objectives are preventing government involvement in IP violations, ensuring that trade agreements foster innovation and promote access to medicines and preventing the undermining of market access for U.S. products through a country’s local laws, e.g., improper recognition of geographical indications or failure to ensure procedural fairness.
The objectives build on the 2015 Bipartisan Congressional Trade Priorities and Accountability Act, which states that the objectives of U.S. trade treaty negotiations are to promote adequate and effective protection of IP and to ensure that trade agreements reflect standards of protection similar to U.S. law. Among measures that could strengthen IP protections are enhanced rules for seizure of infringing goods and an increased ability for plaintiffs to gain compensation for infringement.
In view of its statements regarding foreign piracy of U.S. intellectual property, the administration may seek to include criminal enforcement provisions from domestic laws, such as the Economic Espionage Act (1996), in treaty renegotiations. For example, sanctions for misappropriation of trade secrets to benefit a foreign power could be sought, criminal forfeiture provisions for proceeds of IP-related crimes could be introduced and the ability to gain injunctions against offending parties could be made available.
Additional IP provisions that Canada and Mexico had already agreed to as part of the Trans-Pacific Partnership (TPP) could potentially be the subject of trilateral negotiations. These include (1) extending copyright terms to life plus 70 years; (2) recognizing violations of digital rights management similar to those in the Digital Millennium Copyright Act and (3) providing a five-year term for data exclusivity for biologics. The TPP’s five-year minimum period for regulatory data exclusivity for biologics is less than the 12 years granted in the United States under the Biologics Price Competition and Innovation Act of 2009.