Together with 11 other countries, Mexico agreed to the Trans-Pacific Partnership Agreement (TPP) via a joint declaration on November 18, 2015. The Agreement represents the latest international effort to modernize IP systems around the world, and could have far-reaching implications for IP rights in many of the participating countries. While it merely confirms or improves the level of copyright protection provided by previous international IP treaties, such as the Paris, Berne and Rome Conventions, or by free trade agreements such as TRIPS or NAFTA, it also addresses new questions-some of which are related to digital rights, including liability of internet service providers (ISPs).

The treaty is strategic for Mexico, considering the existing partnership with NAFTA countries, but also because of the opportunity the TPP presents to strengthen ties with Japan, Chile and Peru and to initiate a relationship with Malaysia, Singapore, Vietnam, Australia and New Zealand. The TPP will ultimately provide Mexico access to markets totaling 36% of the world’s GDP and 25% of international trade.

IP Implications

Chapter 18 of the TPP is devoted to IP rights and divided into 11 sections (A through K). For the purpose of this newsletter, the relevant sections are: H, “Copyright and Related Rights”; I, “Enforcement”; and J, “Internet Service Providers”.

1.       Section H, “Copyright and Related Rights”

This section builds upon the substantive principles of the Berne, Rome and WIPO Copyright Treaty/WIPO Performances and Phonograms Treaty, and on the procedural principles of NAFTA and TRIPS. In essence, the section provides minimum standard provisions in connection with the economic rights of reproduction, distribution and communication to the public, including certain limitations and exceptions to such rights.

Importantly, the TPP has raised the minimum term of copyright protection to life of the author plus 70 years, or, if the copyright owner is someone other than the author, 70 years after the first authorized publication of a work, performance or phonogram (or creation of a work if not published within 25 years). Other topics covered by this section include ensuring that there is no hierarchy between  the rights of authors, on the one hand, and the rights of performers and record producers on the other, and the importance of collective management based on practices that are fair, efficient, transparent and accountable.

This section also addresses the topic of Technological Protection Measures (TPMs) in detail. It raises the standards of the WIPO Treaties for criminal or civil remedies against circumvention of measures to protect works, performances and recordings. Moreover, it improves remedies against the sale or rental of products, devices or components thereof that circumvent TPMs. Newer rules have been provided in connection with limitations or exceptions to TPMs in cases where TPM rights have an adverse impact on legal circumvention activities. Additionally, section H addresses Rights Management Information (RMI). It provides for criminal or civil remedies against people who knowingly (or with a reason to know) remove or alter an RMI from a work-or a copy thereof-or distribute or communicate to the public works or copies without an RMI. Remedies are available if, by removing or altering an RMI, or by distributing or communicating to the public works or copies without it, the infringer induces, enables, facilitates or conceals an infringement to copyright or neighboring rights.

Once the TPP is approved, the Mexican Congress will need to work hard to improve the existing protections for TPMs and RMIs, which are presently quite limited.

2.       Section I “Enforcement”

This section can be seen as a continuation of the principles of NAFTA and TRIPS, with some nuances. For example, the article on “Presumptions” says that, for copyright actions, it shall be presumed that the person whose name is indicated in connection with a work, performance or production is the copyright or neighboring right owner, and that the copyright or related right subsists in the subject matter and  is valid and enforceable. This presumption of ownership and validity means that the contesting party shall bear the burden of proving ownership or validity.