TPPA – IP Chapter: Another Look

This article first appeared on DNA.

The Trans-Pacific Partnership Agreement (TPPA) has been getting a lot of attention recently, as the text has been released after years of secret negotiations.

In Malaysia, there is a special sitting of Parliament scheduled to debate the merits of the TPPA.

I had the opportunity to read the TPPA chapter (PDF) on intellectual property (IP) rights recently.

While the chapter itself is merely 74 pages of legalese, in order to make sense of it, I had to read relevant parts of other treaties – for example, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Paris Convention, Berne Convention – and so on, as these are regularly referenced from within the chapter.

Additionally, I read up on the local legislation such as our Copyright Act, Patent Act, etc., to compare the differences between pre-TPPA and post-TPPA scenarios.

Let’s just say that there was a lot of reading involved for a single chapter, and I can appreciate why few have a real grasp of the entire agreement, and also why many are asking for more time to study it instead of rushing into signing in February.

Politicians and civil society have raised issues of biologics and pharmaceutical patents when it comes to the IP chapter.

However, I would like to point out that the IP chapter goes much further than pharmaceuticals and biologics, and I’m afraid that some other issues may have been overlooked.

I have commented on the issue of copyright extensions previously, and I won’t repeat those remarks here.

However, I’m interested in highlighting some other changes that piqued my interest while I was digesting the chapter.

Sounds and scents

Trademarks are undergoing interesting reform. Trademarks are currently protected under the Trademark Act 1976 in Malaysia.

However, our current law merely protects marks such as unique names, signs, and geographic indications.

Under Article 18.18 of the TPPA, each government must not deny a trademark application for merely being a sound and must also make best effort to register scents.

This means that trademarks are being extended to both sounds and smells. As an example, instead of merely protecting the name of Satay Kajang, one may soon be able to protect the unique smell of burnt satay and also the unique sounds made while it roasts.

Textiles

Industrial design is often missed when discussing IP as it is not primary protection. Industrial design is currently protected under the Industrial Design Act 1996 in Malaysia and typically covers designs such as product packaging and furniture, but not textile designs.

A PwC study (PDF) shows that the Malaysian textile sector is set to register the largest gains in export growth due to the trade effects of the TPPA. I’m sure that our local textile industry is happy to hear this.

Reading Article 18.55 of the TPPA together with Article 25.2 of TRIPS, each government must ensure that textile designs are protected under industrial design.

Also, reading it together with Article 26.3 of TRIPS, the period of protection is being extended to 10 years from the current five years.

As a result, while the textile industry in Malaysia is set to grow, it will have to pay licensing fees for the textile designs that are manufactured, even for designs that are way past season.

Online services

Under the Copyright Act 1987 of Malaysia, Internet service providers (ISPs) are burdened with the responsibility of policing copyright infringements. If a rights-holder complains to the ISP of an infringement, the ISP is required to take certain actions as detailed in the law.

Under Article 18.82 of the TPPA, the definition of ISP is being extended to include online services that store content; and provides links to any other online location using hyperlinks.

That pretty much describes every modern online service.

What this means is that any online service that provides user-generated content, which is pretty much any social media-enabled service, will now be responsible for policing copyright infringements. It even covers content that is automatically scraped and aggregated.

Trade secrets

Trade secrets are mentioned only in a single article within the entire chapter. Also, there is no specific Malaysian law that deals with trade secrets.

Therefore, it is easy to understand why this issue has gone under the radar.

Under Article 18.78 of the TPPA, each government must enact specific laws to deal with the unlawful disclosure of trade secrets and must provide for criminal procedures and penalties if such a law is breached.

I do not think that it is right for the government to incarcerate someone to protect the commercial interests of corporations. Unlike state secrets, trade secrets do not endanger the public nor harm the rakyat (citizenry). Think on that for a minute.

These are just some of the interesting ones but there are many other changes and I would recommend anyone with an interest in IP to read the chapter.

As someone who minds his own business, I will have to get myself ready for these changes as many of the provisions must come into force within two to three years after signing.

Personally, I think that the biggest beneficiaries of the IP chapter are the agents and lawyers. They will definitely see more business.

Maybe it’s time for me to start an IP firm.

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Debunking Our Denials

Our Prime Minister has been recently caught in some very serious allegations. In response, he has issued an official statement denying such claims and pointing the finger elsewhere instead. Unfortunately for him, his spin masters aren’t very good at their job. The denials aren’t based on fact but spin. Let’s take a look.

Missing Monies

Tun then created a crisis when he recklessly claimed that RM42 billion was missing from 1MDB, when in fact these are audited debts backed by RM51 billion audited assets.

This is the tactic of denying the side accusation without addressing the actual issue at hand.

The actual issue is the mismanagement of 1MDB funds. Everyone wants to know if the monies were mishandled, siphoned or abused. While it may be true that 1MDB holds more assets than liabilites on paper, this does not mean that the funds weren’t abused or misused. Even if 1MDB made a profit on its ventures, it still doesn’t mean that the funds weren’t abused or misused.

When Tun asks where the money has gone missing, he doesn’t mean that the entire RM42billion is lost. In fact, Tun did a very simple calculation to show that there are monies that are known but that there are also monies that are not known where they have gone, potentially due to mismanagement of funds.

As an example, we would like to know why hasn’t the Finance Minister been charged for lying to parliament. It is evidently clear that the so-called 1MDB money redeemed from the Cayman Islands turned from cash into units of some kind. There are just so many discrepencies in the story of 1MDB that it would make an excellent Hollywood film later.

The fact that they were audited doesn’t help when 1MDB changed so many auditors in so few years and has delayed its audited accounts too. 1MDB must have one of the highest turnaround rates – 3 CEOs, 3 auditors and 2 chairmen in 5 years. Something must be seriously amiss since nobody seems to want to stick around even when they are amply compensated.

Using this argument of having more assets than liabilities is very weak when everyone knows that a large portion of those assets are merely inflated due to the prices of the land banks being revaluated. So, 1MDB spent a small sum of RM194million to buy TRX land, which it then revalued to RM7billion. then, it spent another RM1.69billion to buy land that was revalued to RM11billion.

If we merely consider the capital appreciation gained from these two pieces of property, then the assets of 1MDB should be significantly more than RM51billion. Anyone who knows basic finance knows that there are questions to be asked. There are a lot more loopholes in the 1MDB denial that has been reported all over.

So, trying to shut down accusations by claiming that the accounts were audited and that there are more assets than liabilities, isn’t the right way to go. Just completely open up 1MDB’s books for the public to consume if you truly want to convince the people that 1MDB was not mismanaged or misused in any way.

Personal Funds

The latest allegation is that I have taken state-linked funds for personal gain. I believe Tun, working hand in glove with foreign nationals, including the now discredited political attack blog Sarawak Report, is behind this latest lie.

This is the tactic of making up an accusation yourself and then denying it yourself.

Thing is, nobody has claimed that the monies was for personal gain. Sarawak report asked if the bulk of the funds – US$680million – was used as an election fund. (One should actually read the whole article before writing your denial.) This piece of denial is not denying the real allegation but merely denying a made up allegation.

Also, it is clear that Sarawak Report is not the only media making serious allegations about the monies. While nobody will take  Sarawak Report (an admitted blog) as the golden standard of journalism and reporting, the Wall Street Journal is quite another matter entirely.

The WSJ has also reportedly seen documents that traced the funds into our PM’s accounts. This is far more serious because people actually take the WSJ seriously. I doubt that their journalists would make such an allegation without seriously credible evidence in their hands. This is why the WSJ article is the one being quoted by other international news agencies and not Sarawak Report.

I don’t see the PM making the same discredited claim against WSJ even though they were both reporting on the same thing as a primary source. While the Tun may have some influence in Malaysia, I don’t really think that he has much influence over the WSJ or any other major international news outlet.

So, the PM should immediately demand for a retraction from WSJ and issue a stern warning of taking further legal action against them instead of trying to punch holes in their report by making false denials.

Doctored Documents

As we now know, a number of the documents on which recent allegations have been based were reportedly doctored. The person who was leaking these documents is under investigation by authorities overseas for attempting to extort and blackmail his former employer. This says a lot about the reliability of the documents, and those who are using them to damage our government and our country.

The trouble is that, the documents were never reported as being doctored. They are merely reported as being tampered with. There is a big difference between being tampered and being doctored. The choice of words used in the denial is quite telling. I think that someone is trying to spin it the wrong way.

Doctored is defined as, “change the content or appearance of (a document or picture) in order to deceive; falsify”, while tampered is defined as, “interfere with (something) in order to cause damage or make unauthorized alterations.”

These two words have very different meanings. The documents were merely reported as being tampered with. In fact, Sarawak Report has admitted that these documents were tampered with and has stood behind their reporting by claiming that the documents are still true as the tampering did not alter the content of the document, with evidence of the chain of edits to the document.

Now, the trouble is that according to a deputy minister, even the claims of tampering are questionable as these were made based on logical conclusion and not a clear factual assertion. In fact, a report claimed that the party that has originally made such a claim has refused to entertain any sort of confirmation that they had indeed made such a claim, which brings to question the veracity of the entire claim itself.

Furthermore, one should realise that blackmail and extortion only works if the documents are authentic. No blackmail would work if the documents are false, period. You cannot blackmail anyone with a claim that is patently false since such allegations cannot be proven and can be easily disproved. So, if this Justo guy was indeed trying to blackmail PetroSaudi, then there must be some truth in the documents.

So, they should actually release the real documents from 1MDB to show what are the actual details of the PetroSaudi deals. Let us have the real contracts to see if the deal was lopsided or if it was above board.

Hypocrisy in Selangor

Congratulations, rakyat of Selangor, for you have gotten the MB that you deserve.

According to media reports, it seems that Azmin Ali has successfully been appointed as the new MB of Selangor.

Now, this made me laugh out loud – seriously!

Demonstrably Less Popular
I definitely recall that Azmin has demonstrably got less support than Khalid as MB. This was evident in the run up to and right after GE13. When Azmin’s name was floated as an MB candidate, it was roundly rejected by both PAS and DAP.

Now, he is the new MB in-waiting. Both PKR and DAP has indicated their support for him. But that still doesn’t give him the majority support in the Dewan.

So-called Majority Support
The Lady of Selangor has got so-called demonstrated the support of the majority of the Dewan. However, Azmin has failed to demonstrate any support. In fact, he has got demonstrably less support than Khalid.

So, where is the call for Azmin’s resignation or for him to step down?

Blaming the Palace
Please DO NOT blame the palace for taking the action that it did. The Sultan acted entirely within his capacity and based on the best facts available to him at the time. If there is any blame to be had, it should be directed towards those who abused their power to cause the whole fiasco – namely Anwar Ibrahim.

If Anwar Ibrahim had any honour, he would resign to take responsibility for this failed coup. However, that snake has no such thing.

Follow Processes
I hope that this Selangor fiasco serves as a lesson to all people who wish to side-step process in the future. The Constitution spells out rules that regulate power for a reason. If you choose to avoid the Constitution by not casting a vote of no confidence and demonstrating your support outside the Dewan, you are asking for the Sultan to invoke his utter discretion as he has nothing to base his decision off!

If you want to Sultan to respect your decision, your decision needs to have the highest authority of the legislative. Then, the Sultan has something solid to base his decision on, instead of his own gut instinct.

In conclusion, what this fiasco has demonstrated to us is the utter hypocrisy of Pakatan, particularly the PKR and DAP. PAS has been the most consistent of all the parties – while they may have flip-flopped in action, nobody can fault them for being consistent on principle.

Congratulations to Azmin! You have finally achieved the goal that had eluded you for so long, while being the good guy and team player in all of it!

Rogue MB

I’m kind of sick and tired of the political games being played by PKR in Selangor.

If you want to engineer the removal of the Menteri Besar, the Law already provides for such a thing. Trying to oust him through extra-legal methods is sickening. I can expect such things from PKR, which is a party made up of largely UMNO rejects, but I certainly hope that the DAP and PAS do not support such a move.

The things is that as political parties that purport to support the Rule of Law, you need to show that you are actually capable of using the Law correctly. While the post of a Menteri Besar is a powerful one, it is not absolute. There are checks and balances built into the system.

All that they need to do is to muster enough votes in the State Assembly to pass a vote of no confidence against him. This could come in the form of a money bill, for example. That will show that the MB no longer commands the house.

He will then be forced to either tender the resignation of the entire Exco (including himself) or to call for snap elections.

I for one, think that snap elections is a good opportunity to poll the people for their views. If the people think that you did the right thing in booting out the MB, you will be returned to power without question. However, if you did not do the right thing, then you’re in for some shit.

That’s the sticking point.

I think that PKR knows that they are not doing the right thing and they are fearful of snap polls. I think that if snap polls were to be called for, it is PKR that will suffer the wrath of the voters, and not PAS. Now I know why the UMNO rejects joined PKR.

Even if they kick him out of the party, he would still be the MB as there is no recognition of political parties under the Law. If PR chooses to get the Sultan involved in replacing the MB (ala Perak), they will lose all moral authority in that case as they demonstrate just how low they will stoop to get shit done.

They can choose to do the right thing by simply letting things be.

Yes, they now have a rogue MB in their midst but until he does something that is actually wrong, they do not have any reason to remove him. In fact, most quarters seem to think that he is doing things right.

Personally, I think that he’s doing the right thing by doing the right thing and not consulting with the component parties. I have personally always been against the idea of decision making through consensus. That just encourages irresponsible decision making as nobody is held to account.

With a rogue MB in town, the MB is held to account. If things go wrong, he will have nobody to back him up and nobody else to blame. Therefore, he will have to be held responsible for his actions. Personally, I think that will encourage better behaviour.

Personally, I hope that the MB fights this tooth and nail. While I do not deny that the political parties have a role to play and the MB can be replaced, I fervently hope that they actually use the Law to do it correctly.

No closed-door shenanigans please.

PS: Please stop making unfounded accusations against the MB. If there is a clear back-room deal with regards to his debts, show the public the evidence. Then if snap polls are called, the people will back you. However, the replacement had better be cleaner than Khalid!

Better Indelible Ink?

Seriously, I’d like the EC to use real indelible ink instead of better indelible ink. What is wrong with these people. We need the real stuff instead of more expensive food colouring.

Now I have an inkling why they didn’t use the ones imported from India previously, because those were the real deal.

In Malaysia, we’re merely going to use substitutes.

Cancelling Passports

English: Malaysia - regular international pass...
English: Malaysia – regular international passport (Pasport Antarabangsa Malaysia) ICAO Compliant Version (Feb 2010) (Photo credit: Wikipedia)

Now that the elections are over, funny season is back, with more crazies than ever!

I read an article in TMI today, about Malaysians getting pissed with the Immigration DG for his threats to “revoke the passports of Malaysians abroad found to have taken part in anti-government activities”. I think that he should check with his boss, the Home Minister first.

You see, according to another article in TMI, our honourable “Home Minister Datuk Seri Ahmad Zahid Hamidi is denying Malaysians the right to a better voting system by telling them to migrate if they are unhappy with Malaysia’s first-past-the-post system.”

Now, those disgruntled Malaysians who have been taking part in anti-government activities would not be able to migrate out of the country if their passports are revoked now, would they?

In fact, the right thing for the Immigration DG to do would be to facilitate his new boss’ idea and to actually expedite the passport processing for these disgruntled Malaysians so that they can all go overseas and cause trouble overseas and get into trouble overseas, just like in Singapore.

Our nearest neighbour is rather worried that their citizens might start learning from us on how to do 198 Non-Violent Actions of civil protest. So, they are taking action against some of those caught by revoking their visas.

Wisma Putra should have a chat with Singapore to keep them disgruntled ones in Singapore, and to maybe convert some of them to Singaporean citizens!

This is just too funny to be true.

Toppling BN

English: Results of the Malaysian Dewan Rakyat...
English: Results of the Malaysian Dewan Rakyat based on the 2008 general election, showing parliamentary constituencies represented by equal-area hexagons with approximate geographic locations. (Photo credit: Wikipedia)

According to an article in FMT, there are parties that plan to forcibly overthrow the BN government this year possibly through street rallies.

Personally, I am against the idea of taking to the streets to overthrow a corrupt regime. My reason for this is that our situation isn’t yet dire enough to warrant such drastic action. Yes, there is a time and place for such coups but I do not think that our country is ready for it yet.

I have always eluded that things need to get worse before they can get better and that things are not yet bad enough in Malaysia. Yes, the bottom 40% of our people are struggling to survive, but they are still able to struggle. As a result, I do not think that the movement would be able to garner enough support and many people will probably get hurt in the process.

But the million dollar question that I need to answer is this: will I go to the streets in support of such a cause?

I will go to the streets to demand the mass resignation of the Elections Commission. They have screwed up so horribly that in more civil societies, they would have all committed ritual suicide to save their honour. But these people are bereft of honour and in so doing, dishonour the rakyat.

To those who keep harping that our EC did a good job – please stare at your left index finger. The botched up job that they did on the indelible ink already proves that they are either incompetent to play the role of an EC or that it was a willful and deliberate deed to mislead the Malaysian people.

To me, that alone is enough to demand their mass resignation.

However, that is about as far as I am willing to go on this. While I do know that representative democracy has failed us miserably this time around but I also understand that, “democracy is the worst form of government, except for everything else that has been tried.”

The system is rigged. But that does not mean that we abandon the system itself.

I think that we should take to the streets as and when there is a need for it. Malaysians are now primed for street rallies and mass demonstrations. Democracy is very much alive and kicking in Malaysia. More and more people are being awakened on our duties to ensure that the system works.

One occasion might be when the delimitation exercise is conducted, to demand that the drawing of boundaries be free and fair. In fact, the EC should involve the rakyat in the delimitation exercise. I am sure that there are enough mathematicians among us to help carve out fair electoral boundaries.

I feel that Malaysians in general still believe in the system, even if they are highly dejected with the outcome of GE13.

However, we do not have the stomach for violence… yet!