THE IP CHAPTER IN THE US-SINGAPORE FREE TRADE AGREEMENT
| Author | NG-LOY Wee Loon LLB (Hons) (Singapore), LLM (London), Advocate & Solicitor (Singapore)Deputy Director, IP Academy; Associate Professor, Faculty of Law, National University of Singapore. |
| Citation | (2004) 16 SAcLJ 42 |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
The US-Singapore FTA has been hailed as the “gold standard” upon which all FTAs should be modelled. Within this FTA is a full chapter setting out standards of protection for Intellectual Property that go beyond the current international norms. This article provides an overview of the implications that the IP Chapter in the US-Singapore FTA has in the international IP scene, and an examination of the impact of the substantive provisions in the IP Chapter to the domestic IP scene.
1 The most significant development in the Singapore intellectual property (“IP”) scene in the last three years is, without doubt, the conclusion of the US-Singapore Free Trade Agreement. At the signing ceremony on 6 May 2003, this agreement was described by President George Bush as providing the “state of the art protections for Internet commerce and intellectual property”, while the Singapore Prime Minister Goh Chok Tong hailed it as establishing “high standards of intellectual property”.1 Some might say that it would be more accurate to describe this agreement as establishing a higher level of protection for IP rights, since it goes beyond what they regard as already a “high” standard set out in the TRIPs Agreement.
2 The fact that the US-Singapore FTA contains TRIPs-plus obligations, in itself, is not groundbreaking; after all, this is not the first
foray into TRIPs-plus territory for either country. The use of bilateralism by the US to push for TRIPs-plus standards has been tracked very vigilantly.2 What have received little attention are the FTAs which Singapore signed with the European Free Trade Association (“EFTA”) in June 2002 and with Australia in February 2003, wherein the parties agreed to adhere to the WIPO Copyright Treaty 1996 and the WIPO Performances and Phonograms Treaty 1996, and in the case of the EFTA-Singapore FTA, to give effect to the WIPO Joint Recommendation for the Protection of Well-Known Marks.3 These TRIPs-plus obligations are hardly controversial; in particular, those obligations which relate to compliance with the standards set in the WIPO-administered treaties are, to some extent, internationally accepted standards which have been subject to scrutiny at a multilateral forum. It is not surprising, therefore, that the EFTA-Singapore and Australia-Singapore FTAs did not evoke much response from the IP community, both in and outside of Singapore.4
3 The US-Singapore FTA, by comparison, has attracted far more attention. Once the extent of its IP provisions is examined — which will follow in the later sections of this report — the reason becomes obvious: it contains obligations which are “TRIPs-and-WIPO-plus”, that is, beyond even the higher standards set in the post-TRIPs WIPO treaties. In particular, it eliminates, in a certain scenario, the option available in Art 6 of TRIPs to allow parallel importation of pharmaceutical drugs; it limits the compulsory licensing possibilities permitted by Art 31 of TRIPs; and it provides more protection for data submitted for obtaining
approval for the marketing of pharmaceutical drugs and agricultural chemical products beyond that required by Art 39(3) of TRIPs. These obligations are, in themselves, extremely controversial, but the latter two obligations are not exactly the “first” in the world of IP bilateral agreements: the FTA which the US signed with Jordan in October 2000 contains similar obligations.5 What has touched a raw nerve in some quarters is the fact that the US and Singapore bilaterally agreed to settle these controversial issues in a fashion contrary to the agreement reached at the WTO ministerial meeting in 2001 at Doha where the deliberations of these very issues had resulted in a re-affirmation of the TRIPs standard as the solution to deal with the conflict on access to medicine.6 Perhaps this is the real reason for the furore over the signing of the US-Singapore FTA? The sentiment of some in the international community is probably encapsulated in the following paragraphs in Oxfam’s letter to the US Congress:7
In 2001, the primacy of public health over patent rights was affirmed in the Doha Declaration by all WTO members, including the United States. In 2002, Congress restated this commitment as part of the Trade Promotion Authority by instructing the USTR to respect the Declaration in trade negotiations. Unfortunately, this commitment to public health is not being upheld by the USTR. It continues to seek “TRIPS plus” provisions in free trade agreements despite their adverse impact on access to affordable medicines, especially in poor countries facing health crisis. Congress should insist that the TPA mandate be respected.
We urge you to look closely at the US-Singapore FTA and to reject its use as a template for future free trade agreements.
4 Is Oxfam’s criticism of USTR (see above) justified? This segment will give an overview of the USTR’s Special 301 Reports on Singapore in the last few years leading up to the conclusion of the US-Singapore FTA.
5 First, some background. Singapore has the status of a developing country, albeit one with a “more advanced developing
economy”.8 In the five-year transition period, from 1995 to 1999, given to developing countries,9 the following IP legislative reform was undertaken in Singapore:
(a) Patents (Amendment) Act 1995
(b) Trade Marks Act 1998
(c) Geographical Indications Act 1998
(d) Copyright (Amendment) Acts 1998 and 1999
6 By 1 January 2000,10 Singapore took the position that her IP laws are in compliance with the minimum TRIPs standards. At the meeting of the TRIPs Council from 26—29 June 2000 to review Singapore’s legislation, a total of 63 questions were put to the Singapore delegation by various WTO members,11 to which written responses were provided. These responses appeared to satisfy them; to-date, no complaint has been filed against Singapore under the WTO Dispute Resolution Body on the basis of any non-compliance with TRIPs standards.
7 But compliance with TRIPs is not a sufficient condition for a trading partner of the US to stay out of the Special 301 “black lists”. The USTR has this reminder in their annual Special 301 Reports:
The “Special 301” provisions of the Trade Act 1974, as amended, require USTR to identify countries that deny adequate and effective protection of intellectual property rights or fair and equitable market access for US persons that rely on intellectual property protection. Special 301 was amended in the Uruguay Round Agreements Act to
clarify that a country can be found to deny adequate and effective intellectual property protection even if it is in compliance with its obligations under the TRIPs Agreement. It was also amended to direct USTR to take into account a country’s prior status under “Special 301”, the history of US efforts to achieve stronger intellectual protection, and the country’s response to such efforts. [emphasis added]
8 Even though Singapore was TRIP-compliant by 1 January 2000, the 2000 Special 301 Report had Singapore on the “Watch List”, citing the following reasons:12 (a) the growing problem of optical disk piracy13 which results in open retail availability of pirated CDs, VCDs and CDROMs in Singapore; (b) the “self-help” approach to IP enforcement adopted by the Singapore Government which shifts the primary burden and expense of the investigating and prosecuting infringement to the IP right owners;14 and (c) insufficient efforts at the borders to stop the inflow and trans-shipment of infringing articles through Singapore. These reasons are complaints which relate, not to the absence of rights provided to the IP owners, but to Singapore’s enforcement of IP rights in Singapore and to some extent — judging from the third reason — outside of Singapore.
9 2001 was a watershed year for Singapore: it was the year when Singapore was, for the first time, delivered a clean bill of health. However, this reward was not accorded to Singapore because she had finally put in place an effective enforcement regime. The reason, for taking Singapore off the “Watch List”, was the following:15
The United States is committed to a policy of promoting intellectual property protection. In this regard we are also making progress in advancing the protection of these rights through the negotiations of free trade agreements. As part of the negotiations with Jordan, Chile and Singapore, as well as in the hemispheric Free Trade Area of the Americas, we have sought a higher level of intellectual property protection in a number of areas covered by the TRIPs Agreement. The negotiations of these new agreements gives us the opportunity to reflect in the intellectual property provisions the technological changes
that have occurred since the TRIPs Agreement was negotiated in the late 1980s and early 1990s.
This reason was repeated in the 2002 and 2003 Special 301 Reports. Whether the TRIPs-plus obligations in the US-Singapore FTA can solve the enforcement problems, thereby giving effective protection to IP rights, remains to be seen.
10 The following sections will elaborate on some of the significant changes likely to be made to IP law in Singapore to implement the IP Chapter in the US-Singapore FTA.16
11 The Singapore Trade Marks Act 199817 is modelled on the UK Trade Marks Act 1994, but there exist material differences between the two.
12 One difference relates to the statutory definition of a “trade mark” in the Singapore Act:18 it has an additional characteristic, namely, that the sign must be “visually perceptible”. The imposition of visual perceptibility as a condition for registration is permitted in TRIPs.19
13 Under the US-Singapore...
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