How will Trump tackle intellectual property issues?

 Three weeks after Mr Donald Trump won the United States Presidential Election, he received a request from some of the world’s biggest music producers and Grammy-award winners.

The group, comprising members of the Recording Academy’s National Advocacy Committee, urged him to “fix the broken copyright system”.

“Today, music lovers have more ways to listen to music than ever before. But the laws governing the sale and distribution of music have failed to keep pace with technology, keeping music creators from receiving fair market value for their work,” they wrote.

“These outdated laws, stemming from the turn of the last century, have weakened the value of American intellectual property in foreign markets to the tune of tens of millions of dollars in unpaid royalties.”

At the same time, the Internet Association, representing more than 40 major players in the Internet business domain including Facebook, Google, Netflix, Amazon and Twitter, also wrote to Mr Trump with a wishlist of policy agendas.

The association called for, among other things, better protection for Internet companies from liability for what their users say or do online, and for taking down infringing content uploaded by users (that is, “copyright safe harbours”).

They also urged the US to support balanced IP provisions in future trade agreements, as uneven regulations in overseas markets are strong barriers to entry.

While the requests reflect real legal and commercial concerns, no one knows how the President-elect will deal with IP issues that cover copyrights, patents, trademarks and trade secrets.

This is especially after his promise, in his words, to “rip up” existing trade pacts such as the Trans Pacific Partnership (TPP), which covers IP issues.

In this post-Trump and post-Brexit world, filled with economic and political uncertainty, IP is hardly an obvious priority.

But the protection of IP rights is more crucial now as it has the potential to boost the economy by encouraging innovation and creating jobs.

Writing in Fortune magazine this month, political strategist Doug Schoen expressed an anxiety that simmers in the American business psyche: “All the promises of bringing jobs back from China will go for naught, as China will simply mimic our technologies more brazenly (which it already tries to do, even with our strict regulations).”

In the same article, Americans are reminded: “If we fail to protect IP rights, both domestically and abroad, we risk jeopardising one of our greatest drivers of economic growth and competitiveness.”

IP-intensive industries, added Mr Schoen, support more than 45 million US jobs — 30 per cent of the jobs in the country — and contribute more than US$6 trillion (S$8.7 trillion), or 38.2 per cent, of US GDP.

In the United Kingdom, some IP lawyers have seen a rise in business after the referendum in favour of leaving the European Union, as organisations and individuals are worried about their IP rights in the UK after Brexit and are taking the initiative to secure direct protection in the UK, rather than vicariously via the EU.

If Mr Trump does withdraw the US from the 12-nation TPP, it will be a big blow to IP legislative development.

Many of these multi-country trade deals contain provisions that could be beneficial to the IP interests of creative industries, technology companies, pharmaceutical companies and innovative organisations — to name a few.

The TPP, for example, has copyright provisions that give some rights holders a monopoly for life plus an extended 70 years, as well as tough sanctions against piracy.

Pharmaceutical companies, in particular, could gain from clauses allowing them to extend monopoly rights over new-generation medicines and block cheap generic medicines.

The key is that these trade pacts have a way of harmonising IP laws across the world by imposing common standards that member nations must adhere to. For example, TPP members Japan and New Zealand have taken steps to update their copyright laws to fulfil TPP obligations.

While it is likely that New Zealand may not implement them if the TPP falls through, Japan appears prepared to go ahead regardless of the future of the trade pact.

As IP regulation evolves, the tension between producer rights and consumer rights must always be delicately balanced.

Some critics have argued that the IP provisions of the TPP benefit mostly corporations and not necessarily consumers. For instance, extending the patents of medicine could deny the poor of access to more affordable generic drugs sooner.

On the other hand, concerns about health issues have also led to the crimping of trademark rights of some companies, such as the proposed plain packaging legislation for tobacco products in the UK, Singapore and elsewhere.

Plain packaging imposes restrictions on the ability of trademark owners to inform the public of the trade origin of their goods, thereby potentially reducing the ease by which consumers may tell products from different manufacturers apart. This could also indirectly enable counterfeits to be made and distributed more easily.

In both situations, there ought to be a better balance struck between protecting business innovation and identity, and the wider public good.

The music industry is an interesting case study of similar tension. Musicians and music producers want the copyright system to be fixed, while global consumers are happy not to have to pay for their music.

Which side would trump the other? For now, all eyes are set on Mr Trump to keep the music industry — and by extension, the global economy — humming.

 

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