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IP trade negotiations a prescription for harm

Trade Minister Andrew Robb has responded to last week’s leak of the intellectual property chapter negotiations of the Trans-Pacific Partnership, arguing Australia won’t agree to anything that would “force…

The leaked IP chapter of the Trans-Pacific Partnership negotiations reflects a highly prescriptive set of rules that if adopted would prove harmful to Australia. voteprime/Flickr

Trade Minister Andrew Robb has responded to last week’s leak of the intellectual property chapter negotiations of the Trans-Pacific Partnership, arguing Australia won’t agree to anything that would “force Australian consumers to pay more for subsidised drugs or imposes tougher penalties on internet providers”.

But if the document is accurate, it looks like Australia wants others to adopt an IP chapter that is highly prescriptive, and which would lock Australian IP law to an inflexible, and in many cases outdated and harmful set of rules.

Organisations including Knowledge Ecology International, Public Citizen, Program on Information Justice and Intellectual Property (PIJIP) and Medicins Sans Frontieres have all commented on the leaked text. All are warning that the text involves dangers for access to medicines, the internet, and IP law generally.

Devil in the detail

Is the draft as bad as the critics have been saying? Yes. Not every claim you will read about the text is 100% accurate. It is not true, for example, that Australia is opposing limits on intermediary liability (although the option we support to limit ISP liability is horribly complex, limited and inflexible compared to alternatives on the table). But if everything Australia seems to be supporting in this leak goes through, it will be bad for Australian interests, and if some of what Australia opposes gets through, it could be disastrous.

The leak is particularly interesting because it reveals individual country negotiating positions - and it seems that Australia is playing a complex role, but one which, in my view, is ultimately not well thought through.

On patent law, Australia’s role seems to be (mostly) benign, though there’s plenty to fear in the US-proposed text. The US is alone in trying to ram through extraordinary new rights for pharmaceutical patent holders (broader patentability including for new drug formulations with no proven improved efficacy, extended patent terms, extended monopolies on clinical data, links between the processes of the TGA and patent litigation).

These extra protections would, if the analysis of our recent Pharmaceutical Patents Review Draft Report is right, inevitably increase Australia’s drug bill (and, worst case scenario, perhaps cause Australia to cut back on the drugs available to Australians under subsidy to control ballooning costs). Here, other countries have proposed a much less protective, and more flexible approach. We should hope that they prevail, and it would have been nice to see Australia recorded as supporting more of the flexible provisions in this text.

On copyright, however, Australia’s role is much less benign, at least from a user perspective. Australia is supporting very extensive criminalisation of copyright infringement: under the Australian position, even a single copyright infringement that leads to indirect financial gain is a criminal act. So the publisher who had to junk copies of a Schapelle Corby book because it had some copyright infringing photos in it, or the pub that is a bit late paying its APRA licence fees, would both be deemed criminals. But it could be worse. If the US gets its way, copying a friend’s CD or photocopying too much of a textbook you can’t afford to buy would probably become criminal acts.

On anti-circumvention rules (rules about hacking technical measures copyright owners use to control access/copying of content), Australia seems to be supporting text that matches the Australia-US Free Trade Agreement. Including the bit that was described by a Parliamentary Committee with members from both sides of politics as a “lamentable and inexcusable flaw”. Say goodbye to any sensible way to deal with issues around geo-locked content and the “Australia tax”.

On intermediary liability, Australia wants to lock in a model originally written in the US back in 1997, rather than adopt more forward-looking, flexible options put on the table by other parties.

On IP enforcement, there’s a few nasties that may be hidden in some of the details of the text, including in-transit border seizures that could impact access to medicines. Australia doesn’t support everything here, but the proposals do include treble damages for patent infringement; seizure of anything and everything used to infringe copyright (say goodbye to your laptop or your cloud server), and more. The IP enforcement provisions include few safeguards for civil liberties or due process, and no requirement that I could find that remedies in infringement be proportional to the seriousness of the infringement or avoid harming innocent third parties.

Long-term impact

But the main evils of the text do not just lie in specific details. The negotiators could still fix specific issues, and some, but by no means all of the positions Australia has taken here could improve the text and make it less wholly unbalanced. No doubt following all the commentary of the last few days, more changes will be made.

The real problem is the fact that there is so much detail. Remember, this is a trade agreement, and it might even be a framework for a broader regional deal. It likely won’t change for decades. Even assuming these rules are sensible now (which is up for debate), will they still seem sensible in 20 years? Not likely.

And the leak we’ve seen is just one of over 20 chapters. The others could contain detail equally as bad. But we don’t know. According to the negotiators, we don’t need to know because they’re “consulting widely”. In light of what we see in the IP draft, however, this “trust us” mantra is wearing very thin indeed.


This is the fourth piece in our series on the Trans-Pacific Partnership.

Read the other pieces:

When trade agreements threaten sovereignty: Australia beware

Multilateral, regional, bilateral: which agreement is best

The Trans-Pacific Partnership and Australia’s right to know

Trade pact would make internet services more expensive

Join the conversation

14 Comments sorted by

  1. R. Ambrose Raven

    none

    Transnational capitalism's latest unfair-trade exercise involving us is the Trans-Pacific Partnership (TPP), intended to be a massive unfair-trade bloc to allow further control of smaller economies by the U.S. (and Japan to a lesser extent). As the Office of the US Trade Representative put it, “In this negotiation, the United States is seeking to develop a high-standard, 21st-century regional trade agreement that will support the creation and retention of jobs in the United States and promote economic…

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    1. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to R. Ambrose Raven

      Of course the US will seek to further US trade interests in the TPP negotiations.

      The real question is whether Australia is going to further its own interests in the negotiation, and whether Australia has done the analysis - the serious, hard analysis - of whether everything they're promoting or might sign up to - is in Australian interests.

      Frankly that analysis is hard to do - especially if the other 20+ chapters are anywhere near as detailed as this one - and they're trying to do it on a rushed timetable without full consultation. It's yet another reason why the text needs to be public - so that people in the know can identify the potential problems.

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    2. R. Ambrose Raven

      none

      In reply to Kimberlee Weatherall

      But we are always told that free trade benefits everybody - indeed, that has long been one of the main justifications for the unilateral cutting of tariffs, and for casting the car industry adrift.

      As with spying, of course, the secrecy is intended to prevent public disagreement with what is being done in our name.

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  2. R. Ambrose Raven

    none

    In fact, the biggest problem is that our stupid politicians - owned as they are by transnational capitalism - see far too much benefit in such intrinsically damaging things, while doing far too little as regards the interventionist industry policy of which our economy is in far far greater need.

    Note how politicians so supposedly committed to labour deregulation are suddenly very happy to promote what seems an extremely complex "agreement" involving lots of regulation. But of course that is necessary to ensure maximum benefit to the filthy rich and other parasites.

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  3. Robert Tony Brklje
    Robert Tony Brklje is a Friend of The Conversation.

    retired

    Just to remind the author of this article, seizure of anything and everything used to infringe copyright, includes the family home (premises facilitating the infringement of copyright) and if you think they wont go for your home if given the chance, you are seriously deluded.
    As for fiscal gain, P2P music is file trading, so the fiscal gain is getting music for giving copies of music, the music has financial value, hence profit is derived and every child who participates will be subject to criminal prosecution.
    We are talking seriously sick and disturbed individuals behind the Toilet Paper Protocol (so named because of what is does to countries constitutions), basically a work of psychopath inc.

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    1. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to Robert Tony Brklje

      You are correct regarding the extent of potential seizures. For more detail on the enforcement provisions - including seizure - I have done a much more detailed analysis which is available at http://works.bepress.com/kimweatherall/27/.

      Regarding financial gain, the text proposed by the US would include 'private' financial gain. Australia opposes the inclusion of 'private' which is why my article focused on SMEs rather than individuals. Current Australian law excludes 'any advantage, benefit, or gain that is received by a person and results from, or is associated with, the person’s private or domestic use of any copyright material'. There are arguments that engaging in file-sharing where you are making material available to others is already criminal under Australian law, but there's a few questions of proof that would make such a case interesting.

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  4. Jack Arnold

    Director

    Surely Australians have woken up to the fact that the US government looks after American interests to the detriment of everybody else. The Australia US Free Trade Agreement is a typical example. This Trans Pacific Partnership is just another choker chain on Australian industrial development for the benefit of US manufacturers.

    Jobs for Americans, empty mine pits and polluted groundwater tables for Australians.

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    1. Rory McGuire

      Science commentator

      In reply to Jack Arnold

      Jack, I think you are seriously wrong about Australians waking up to when we are being suckered. Some years ago I subscribed to all comments etc from the US Sec of State, unfortunately I cannot remember if it was Condoleezza Rice or Hilary Clinton but it hardly matters. At a press conference she was accused of opening up access to US markets and threatening US jobs by agreeing to the Australia-US trade agreement.
      Her reply was, "don't you worry about that, this agreement has been structured so no jobs will be threatened but we will have greater access to more international markets", or words to that effect. I waited for this comment to be exposed in the Australian media. Not a mention.
      And given the US track record in such trade deals I am sure US interests can rest assured. But the question remains, what game is Australia playing here? If our negotiators are acting in our long-term interests why are they so secretive about it?

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    2. Michael Wahren

      Self employed

      In reply to Rory McGuire

      Our negotiators are not acting in our interest, they are acting in the interest of their corporate clients. The secrecy is absolutely necessary to prevent a public backlash that would scupper the deal. To get that required public backlash will be very difficult because the majority of Australian media is owned by same said corporates. The problem is just a subset of the problems with capitalism, Joe publics job is to consume, elect the corporate representative every three years or so and that is it period. The corporates and elites attitude is of course all for them and nothing for the rest. The idea of citizenship and community is just tokenism, with no reality, a succor to appease the consumers.

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  5. robert roeder
    robert roeder is a Friend of The Conversation.

    retired

    Here we have an issue which will affect everyone in this country in a adverse way and probably less than 10% of the population have even heard about it. If copyright holders prosecuted every breach then soon or later nearly everyone would run foul of the law. Couple that with the fact that the NSA is spying on all of us with the assistance of our government and we have a recipe for disaster.
    You see a photo text or a video on the internet, how do you know what it's copyright status is, there is…

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  6. MItchell Lennard

    Researcher - Distributed Energy Systems

    Thanks Kimberlee,

    Following this series of articles it seems clear that there are likely to be significant issues with this agreement. Your concept that the document should be publicly available so a wide range of experts can analyse and discuss is excellent.

    Without recourse to political arguments about multinational conspiracies what I still would like to understand is:

    Why is our Government being so secretive regarding the draft?, whats the concern regarding open discussion?
    Can our Government commit to the treaty without the treaty being agreed by Parliament?- i.e does it need to be enacted by legislation.
    Once agreed, by whatever means, can Australia back out

    This last question also applies to the case in Hong Kong regarding plain packages, why are we bothering with this case, who would enforce any outcome and can we step out of the treaty that is underpinning the case

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    1. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to MItchell Lennard

      To answer your questions:

      1. Re 'secrecy', this has long been practice in trade negotiations and was part of agreement between parties at start of negotiations. that is, Australian government can't release text without agreement of other countries. Although given that US uses 'cleared advisors' system to share text with industry stakeholders, it seems doubtful there is nothing DFAT can do.

      2. Agreeing to treaties is executive power. Government can sign and bind Australia without parliamentary…

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    2. Michael Wahren

      Self employed

      In reply to Kimberlee Weatherall

      Your point 4 re US doing as it pleases is interesting and instructive. The US will always (and have always) act in its own interest regardless of any treaties or agreements they sign. Woe be you if you act in your interest and that does not coincide with US interests. I guess in this regard nothing will change until the empire collapses (one way or another).

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