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IP and FTAs of Singapore: Ten Years On

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Intellectual Property and Free Trade Agreements in the Asia-Pacific Region

Part of the book series: MPI Studies on Intellectual Property and Competition Law ((MSIP,volume 24))

Abstract

This year 2013 marks the tenth anniversary of ‘TRIPS-plus’ level of protection in Singapore which was put in place as a result of the US-Singapore Free Trade Agreement signed in 2003. A decade seems like an appropriate time to assess the impact of this higher level of IP protection in Singapore. This chapter is the ‘report card’ of sorts. The conclusion reached is that it is still not possible to detect a direct link between higher level of IP protection and enhanced economic growth in IP-reliant sectors.

W.L. Ng-Loy: LLM (Lond), LLB (S’pore), Professor, National University of Singapore.

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Notes

  1. 1.

    The IP Chapter in this FTA was revised, with effect from September 2011.

  2. 2.

    See the Report of the Economic Review Committee, New Challenges, Fresh Goals—Towards a Dynamic Global City [Main Report] Ministry of Trade and Industry, Singapore, February 2003, p. 52. http://www.mti.gov.sg/ResearchRoom/Documents/app.mti.gov.sg/data/pages/507/doc/1%20ERC_Main_Committee.pdf. Accessed 25 July 2013.

  3. 3.

    See the ASEAN Framework Agreement on Intellectual Property Cooperation, signed 15 December 1995, Art. 6.

  4. 4.

    This obligation also exists in the Singapore-Australia FTA (2003). See also the Trans-Pacific Strategic EPA between Singapore, Brunei, New Zealand and Chile (2005) which contains an obligation to provide for the right of reproduction and the right of communication to the public that are consistent with the WCT and the WPPT, as well as the ASEAN-Australia-New Zealand FTA which contains an obligation to provide to authors of works the exclusive right to authorise any communication to the public of their works by wire or wireless means.

  5. 5.

    For geographical indications, there is a provision on this subject matter in the Trans-Pacific Strategic EPA between Singapore, Brunei, New Zealand and Chile (2005) which is not ‘TRIPS-plus’ but which is nonetheless interesting to note. This provision sets out a list of terms which are ‘recognised geographical indications for wines and spirits in the respective Party’ and these terms are to be protected in the territory of the other parties to the extent permitted by and in accordance to the terms and conditions set out in their domestic law.

  6. 6.

    See the ASEAN Framework Agreement on Intellectual Property Cooperation, Art. 2.3.3(b); the Hanoi Plan of Action, Art. 2.7; the Vientiane Action Plan, Art. 2.3.6.

  7. 7.

    Compare the following provisions: TRIPS, Art. 13 (copyright) and Art. 14.6 (phonograms, performances) with the USSFTA, Art. 16.4.10; TRIPS, Art. 17 with USSFTA, Art. 16.2.3 (trademarks); and TRIPS, Art. 30 with USSFTA, Art. 16.7.3 (patents).

  8. 8.

    See USSFTA, Art. 16.2.1. Contrast with TRIPS, Art. 15.5, where WTO countries have discretion on this matter.

  9. 9.

    Contrast TRIPS, Art. 27.3(b) with USSFTA, Art. 16.7.1.

  10. 10.

    Contrast TRIPS, Art. 15.1 with USSFTA, Art. 16.2.1.

  11. 11.

    Contrast TRIPS, Art. 16.3 with USSFTA, Art. 16.1.2(b)(i). This TRIPS-plus obligation also exists in the EFTA-Singapore FTA (2002).

  12. 12.

    Contrast TRIPS, Art. 12 (authors’ works excluding photographs) and Art. 14.5 (phonograms and performances) with USSFTA, Art. 16.4.4. In the case of photographs, see TRIPS, Art. 9.1 (importing the obligation of Art. 7.4 of the Berne Convention, which sets the minimum duration of protection as 25 years from creation). This TRIPS-plus obligation also exists in the revised IP Chapter of the Singapore-Australia FTA (revised with effect from September 2011).

  13. 13.

    See USSFTA, Art. 16.1.2(iii) and (iv).

  14. 14.

    On anti-circumvention measures, contrast WCT, Art. 11 and WPPT, Art. 18 with USSFTA, Art. 16.4.7. (Note that, in addition to Art. 16.4.7, there is a paragraph in the Side Letter on Optical Disks that creates another exception to the protection of anti-circumvention measures. In this paragraph, it is agreed that Singapore may permit importation and sale of devices which do not render effective a technological measure whose sole purpose is to control market segmentation for legitimate copies of motion pictures. This is an important exception because Singapore’s copyright law permits parallel importation. Without this exception in the anti-circumvention law, film producers would be able to use technology to prevent use of films parallel imported in Singapore). On RMI, contrast WCT, Art. 12 and WPPT, Art. 18 with USSFTA, Art. 16.4.8. Note that there are also provisions in the revised IP Chapter of the Singapore-Australia FTA (revised with effect from September 2011) on anti-circumvention and RMI.

  15. 15.

    See TRIPS, Art. 9.1 (importing Art. 21 of the Berne Convention and the Appendix on Special Provisions Regarding Developing Countries).

  16. 16.

    Contrast TRIPS, Art. 33 with USSFTA, Arts 16.7.7, 16.7.8 and 16.8.4(a). A similar obligation exists in the EFTA-Singapore FTA (2002).

  17. 17.

    The term ‘Bolar’ originated from the US case Roche Products Inc v Bolar Pharmaceutical Co 733 F 2d 858 (Fed Cir 1984) where it was held that the common law defence of ‘experimental use’ only covered experimentation for scientific, not commercial, purposes and therefore did not cover the activities of a generic drug manufacturer in testing and applying for market approval of its generic version of the patented product. Subsequent to this decision, the US introduced a specific exception into its patent legislation to plug the gap left by the common law defence.

  18. 18.

    One view is that clinical testing of generic drugs falls within the existing provision allowing use of the patented product for ‘experimental purposes’. There is, however, jurisprudence from the UK/Europe that this provision does not extend to English cases.

  19. 19.

    See USSFTA, Art. 16.7.5.

  20. 20.

    See TRIPS, Art. 30 and the WTO Panel Report on Canada – Patent Protection of Pharmaceutical Products (WT/DS114/R) 17 March 2000.

  21. 21.

    Contrast TRIPS, Art. 6 and USSFTA, Art. 16.7.2.

  22. 22.

    Note that there was another set of amendments to the provisions on importation in the Singapore Patents Act. This set of amendments, however, had nothing to do with the USSFTA. Rather, they were amendments to implement the Decision of the WTO General Council of 30 August 2003 on Implementation of Paragraph 6 of the Doha Declaration.

  23. 23.

    Contrast TRIPS, Art. 31 with USSFTA, Art. 16.7.6(a).

  24. 24.

    Contrast TRIPS, Art. 27.3(b) with USSFTA, Arts 16.1.2(a)(ii) and 16.7.1.

  25. 25.

    Contrast TRIPS, Art. 39(3) with USSFTA, Art. 16.8.1. Note also the Side Letter on Optical Disks, which provides that the obligation in Art. 16.8.1, does not affect the grant of an import licence.

  26. 26.

    This does not include the Side Letter on Enforcement.

  27. 27.

    Contrast TRIPS, Art. 45.2 with USSFTA, Art. 16.9.9.

  28. 28.

    Contrast TRIPS, Art. 61 with USSFTA, Art. 16.9.1. This TRIPS-plus obligation also exists in the revised IP Chapter of the Singapore-Australia FTA (revised with effect from September 2011). A similar obligation exists in the ASEAN-Australia-New Zealand FTA (2009).

  29. 29.

    Contrast TRIPS, Art. 51 with USSFTA, Art. 6.9.19.

  30. 30.

    See Public Prosecutor v PDM International Pte Ltd [2006] SGDC 91.

  31. 31.

    Ibid., at [21].

  32. 32.

    See Public Prosector v Md Hapiz bin Tahir [2007] SGDC 40. The accused was convicted of the offence of being in possession of 695 pirated copyright articles (game software). He was sentenced to 5 months’ imprisonment. See also PP v. Tan Wei Ling [2006] SGDC 232 where the accused was convicted of the offence of having in her possession 43 infringing copies of TV drama serials for the purpose of sale, knowing that these were infringing copies of cinematography films. The judge recognized that there was no likelihood of this accused repeating the offence (since she had contributed SGD 2,000 to a charity as a sign of remorse and also agreed to disgorge the profit she had made from the illegal sales), but the judge said that nonetheless there was still the matter of ‘general deterrence’. The accused was fined SGD 500 for each of the 43 infringing copies.

  33. 33.

    According to the Report of the 2003 Economic Review Committee’s Subcommittee on Service Industries, the ‘creative cluster’ includes the following 3 broad groups of activities: (1) Arts and culture (performing arts, visual arts, literary arts, photography, crafts, libraries, museums, galleries, archives, auctions, impresarios, festival, heritage sites, performing arts sites, festivals and art supporting enterprises); (2) Design (advertising, architecture, web and software, graphics, industrial product, fashion, communications, interior and environmental); and (3) radio and television broadcasting and cable, digital media including software and computer services, film and video, recorded music and publishing).

  34. 34.

    See the Report of the 2003 Economic Review Committee’s Subcommittee on Service Industries, p. v.

  35. 35.

    See Chow et al. (2004). The update of this study is available at the IP Academy’s website at:

    www.ipacademy.com.sg/site/ipa_cws/resource/executive%20summaries/Economic_Contribution_2007_Exec_Summary_Oct%202008.pdf. Accessed 25 July 2013. This study is based on the WIPO (2003) Guide on Surveying the Economic Contributions of the Copyright-Based Industries. Under these guidelines, ‘core copyright’ sector encompass the activities in the following nine broad categories: (1) Press and literature; (2) Music, theatre productions and operas; (3) Motion pictures and video; (4) Radio and television; (5) Photography; (6) Software and Database; (7) Visual and Graphic Arts; (8) Advertising Services; and (9) Copyright Collecting Societies.

  36. 36.

    See Table A1.1 [Gross Domestic Product By Industry]: Ministry of Trade and Industry, Singapore (2013) Economic Survey of Singapore: 2012, p. 7, http://www.mti.gov.sg/ResearchRoom/SiteAssets/Pages/Economic-Survey-of-Singapore-2012/FullReport_AES2012.pdf, Accessed 25 July 2013.

  37. 37.

    Odex Pte Ltd v. Pacific Internet Ltd [2008] 3 SLR 18.

  38. 38.

    US-Singapore FTA, Art. 16.9.22(b)(xi).

  39. 39.

    See the ASEAN-China Agreement on Trade in Goods, Art. 7; the ASEAN-Korea Agreement on Trade in Goods, Art. 7; the ASEAN-Korea Agreement on Trade in Services, Art. 16; the ASEAN-Japan EPA, Art. 10.1; the NZ-Singapore EPA, Art. 57; the Singapore-Jordan FTA, Art. 8.8; the India-Singapore EPA, Art. 16.5; the Korea-Singapore FTA, Art. 17.2; the Panama-Singapore FTA, Art. 1.2.2; the China-Singapore FTA, Art. 38; the Singapore-Costa Rica FTA, Art. 13.2.

  40. 40.

    See the Singapore-Costa Rica FTA, Art. 13.4.1. See also Art 13.4.2 where the parties agreed to respect the Decision of the WTO General Council of 30 August 2003 on Implementation of Paragraph 6 of the Doha Declaration as well as the 2005 Protocol Amending the TRIPS Agreement.

  41. 41.

    See the ASEAN-China Agreement on Trade in Goods, Art. 12; the ASEAN-Korea EPA, Art. 11 (Agreement in Trade in Goods) and Art. 13 (Agreement in Trade in Services); the ASEAN-Japan EPA, Art. 44.3 (Chapter on Standards, Technical Regulations and Conformity Assessment Procedures); Panama-Singapore FTA, Art. 8.19.2 (in the Chapter on Government Procurement); the China-Singapore FTA, Art. 105.2 (Chapter on Trade in Services).

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Authors and Affiliations

  1. Faculty of Law, National University of Singapore, Singapore, Singapore

    Wee Loon Ng-Loy

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  1. Wee Loon Ng-Loy
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Correspondence to Wee Loon Ng-Loy .

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  1. School of Law Faculty of Business and Law, Deakin University, Melbourne, Australia

    Christoph Antons

  2. Max Planck Institute for Innovation and Competition, Munich, Germany

    Reto M. Hilty

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Ng-Loy, W.L. (2015). IP and FTAs of Singapore: Ten Years On. In: Antons, C., Hilty, R. (eds) Intellectual Property and Free Trade Agreements in the Asia-Pacific Region. MPI Studies on Intellectual Property and Competition Law, vol 24. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-30888-8_12

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