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an IP chapter that is highly prescriptive, and which would lock Australian IP law to an inflexible, and in many cases outdated and harmful set of rules.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.
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: