While I am not a big fan of the way the Trans-Pacific Partnership Agreement was negotiated or has been ballyhooed by the Obama administration, the fact remains that it is the text of the TPP that needs to be the focus of our attention going forward.
Wikileaks has just released a the IP Rights Chapter of the TPP, or at least the version that existed as of October 5, 2015.
Based on the version released by Wikileaks, The Guardian article linked here says that the TPP will "give signatories the ability to curtail legal proceedings if the theft of information is 'detrimental to a party’s economic interests, international relations, or national defense or national security' – in other words, presumably, if a trial would cause the information to spread."
I'm not sure I agree. The text in question (Article Q.Q.H.8.3) says that "a Party (any of the countries who sign on to the TPP) may, where appropriate, limit the availability of such criminal procedures [to prosecute trade secret theft], or limit the level of penalties available, TO one or more of the following cases: . . . . (e) the acts are detrimental to a Party's economic interest, international relations, or national defense or national security."
Note the "TO," which I highlighted. This suggests that a country may limit its criminal prosecution of trade secret theft TO situations where the theft is detrimental to the country's economic interest.
The Guardian's interpretation effectively replaces the word "TO" with the word "IN." Doing so substantially changes the meaning of this section. If a country can "limit the availability of such criminal procedures . . . IN . . . one or more of the following cases," then the country can restrict application of existing laws in situations where "the acts are detrimental to a Party's economic interest" etc.
But I don't think that's what the provision is trying to say.
Certainly this is one area that could use some clarification before it's up for ratification.
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