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Regional trade pact puts Australia in ‘absurd’ position, say experts

The public’s intellectual property rights will continue to be impeded if Australia signs on to the Trans Pacific Partnership…

Protestors picket the last round of Trans Pacific Partnership negotiations in Malaysia, as concerns about secrecy and the agreement’s contents grow. EPA/Azhar Rahim

The public’s intellectual property rights will continue to be impeded if Australia signs on to the Trans Pacific Partnership agreement as it stands, according to copyright and patent experts following the leaking of a key document by Wikileaks.

The experts also say parts of the text, including proposals supported by Australia, do not reflect the domestic Copyright Review process and previous recommendations made by parliamentary inquiries.

Margaret McKenzie, a lecturer in economics at Deakin University, said the agreement would see Australians worse off. She said it was an attempt by copyright owners to capture profit, particularly with more restrictions on internet users.

“These companies want to preserve the higher prices they can charge outside the US for software, books and other products. This agreement entrenches that and takes national control of these things out of the hands of individual countries,” she said.

Ostensibly a regional trade deal, the TPP will have widespread implications for environmental regulation, the Pharmaceutical Benefits Scheme and plain packaging for cigarettes, among other issues.

These fresh concerns follow the leaking of the controversial intellectual property rights chapter last night. The document shows a softening of US demands in some parts of negotiations related to patentability, while it maintains aggressive posture in most other areas.

An earlier draft showed the US wanted patents for “new forms” of known substances, a proposal which would have seen medical patents being renewed if drugs were offered as liquids instead of tablets.

But with the support of Australia, the US is still pushing for patents on new uses for old medicines, which Deborah Gleeson, from La Trobe’s School of Public Health said would lead to “evergreening”, where patents can be renewed continuously.

All other parties, with the exception of Japan which is considering the clause, oppose the rule.

The document highlights a series of disagreements between the US and other participants that remain unresolved even as leaders attempt to complete negotiations by the end of the year.

“Most of the other countries, including Australia, are not agreeing to these extreme demands,” said Dr Gleeson. “But I’m disappointed to see Australia support the proposal for the granting of patents for new uses of existing products.”

“It’s very bad for countries like Vietnam where there is already a significant problem with access to medicine.”

Copyright contradictions in Australian position

Angela Daly, a researcher on communication law at Swinburne, said the chapter showed Australian support for many “self-defeating or absurd provisions”, including US opposition for copyright protection to be determined according to domestic law and international treaties.

In other instances, Australia has sided with the US opposing a proposal that would allow the circumvention of technology that restricts products to certain regions, even though this was recommended by the federal parliament’s Inquiry into IT Pricing.

Australia also supports a US proposal that would force ISPs to cooperate with copyright holders and terminate the accounts of repeat infringers, contrary to the opinion of the High Court that an ISPs inaction could not be taken as authorisation of a copyright infringement.

But Australia supports the parallel importation of goods made under authorisation in other countries, a measure the US opposes.

Dr McKenzie said Australia had already removed parallel importation restrictions on software, and copyright holders were reliant on technological barriers like geoblocking to maintain higher prices in Australia.

The highly secretive negotiations have been plagued by leaks, including of an earlier version of the intellectual property chapter last year, and the release of the entire investment chapter.

And bias toward corporate interests has long been claimed by activists, upset that talks are being conducted without the scrutiny of the US Congress or the Australian parliament.

Ms Daly said consumer organisations and other civil society groups have been locked out of the negotiations while documents are regularly circulated to corporate lobbyists.

Coalition back tracks (a little) on ISDS exclusion

Trade minister Andrew Robb meeting with other representatives to discuss the TPP on the sidelines of the Bali APEC conference. Robb has indicated he is more open to ISDS provisions than the previous government. EPA/Mast Irham

There have also been long-held concerns about the investor-state dispute settlement (ISDS) provisions, which would allow companies from other countries to challenge government regulations on industrial relations or the environment.

It is these clauses – in a previous trade deal struck with Hong Kong – that tobacco companies are basing many of their arguments against plain packaging regulations on.

The previous government had said it would no longer sign trade agreements with these provisions, a policy ditched by the Coalition during the election.

But while the Abbott government and Australian business leaders are more open to ISDS provisions, trade minister Andrew Robb has signalled he will continue to oppose them during TPP negotiations.

Dr Gleeson is worried that the rush to complete negotiations at the end of the year – the next round of talks is scheduled for early December – will see politically motivated trade-offs rather than sound long-term decisions.

“Rather than making decisions about patents and medicines for sound policy reasons, we could see trade-offs for things like access to US markets for sugar in exchange for agreeing to some of their proposals,” she said.

The Conversation takes a closer look at the Trans Pacific Partnership in a series that begins tomorrow. You can find further articles about the TPP here.

Join the conversation

22 Comments sorted by

  1. David Arthur

    resistance gnome

    Perhaps even Trade Ministers would rightly be a little sceptical of Free Trade Agreements that increase restrictions?

  2. Andy Cameron

    Care giver

    Gotta say, this whole TPPA is outrageous. Any legal eagles able to explain how this is constitutionally OK?

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


    The TPPA is allied to the Transatlantic Trade and Investment Partnership Agreement ( TTIP ). Here in Australia very few are aware of this agreement and how it will adversely affect them. Overseas there has been a storm of protests against these agreements, many marches and petitions have occurred.
    How can the LNP think that this agreement developed by 600 of the worlds largest corporations is in anyway beneficial to the people of Australia. Maybe if we revue the USA Australian free trade agreement that Howard and Vaile signed up to, the answer should be obvious. They sold us out, why.
    For a good understanding of these agreements may I suggest the Electronic Frontier Foundation ( EFF ) or the American Civil Liberties Union ( ACLU ) both are worthy of support. US laws have a bad habit of becoming our laws.
    The sheeple are grazing quietly and the wolves enjoy the feast.

  4. R. Ambrose Raven


    It’s quite simple. Abbott "Climate Change is Crap" the Hun is determined to sell us out. "… in the end, if you can come to a deal, everyone is better off. Our objective is ever freer, ever more liberal trade, not just in goods but in services as well." A typical evil Rabid Right untruth.

    Recall the Mickey Mouse copyright extension in the AUSFTA, to protect the earnings of Disney Corporation? It followed the Mickey Mouse Protection Act in the Congress that ensured that additional works made in…

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


    Most members of the US congress have not seen the text of this agreement.
    This week, about 151 House Democrats and 23 Republicans wrote letters to the administration saying this time they are unwilling to give the president carte blanche to "diplomatically legislate." If a couple dozen more lawmakers join the unlikely group of Democrats and Republicans, the House could have enough votes to shoot down fast-track and derail the TPP. If Obama doesn't get the special trade powers, Congress will likely…

    Read more
  6. Sean Arundell

    Uncommon Common Sense

    imho this topic should be viewed upon First Principles. These go back historically to the very first form of Copyright Law instigated in the Europe when the printing press was first made.
    By default all knowledge and creative invention belonged in the Public Domain .. a Commonwealth benefit to all The Commons for the benefit of Humankind in and of itself.
    IT was recognised as being common sense and reasonable that a Temporary Individual Right to "restrict" Public Domain Rights would encourage…

    Read more
    1. Stephen H

      In a contemplative fashion...

      In reply to Sean Arundell

      Sean, you make a good point. To clarify, the US constitution allows for copyrights and patents:

      " promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

      There is nothing in a "life plus 70 years" copyright term that promotes progress. Even the current US laws should be seen as unconstitutional and struck down.

    2. John Holmes

      Agronomist - semi retired consultant

      In reply to Stephen H

      That 20 year extension wast to placate the looming loss of copyright over a plagiarized cartoon mouse.

      Note also the the USA did not pay for much the intellectual capital it used from the British Empire in the 1800's, yet complained about other developing empires like China of doing the same.

    3. Sean Arundell

      Uncommon Common Sense

      In reply to Stephen H

      another example of First principles bracket creep are Corporations today. Hardies Ltd being a classic example here of where the original intent has been changed (basically reversed) to instead "protect" foul play and deception by Directors and major shareholders for their own benefit alone, despite the high ongoing cost to The Commons. All supposedly 'within the Law" of the land.

      Proprietary Limited (Pty Ltd) company, limited by shares, where shareholders are afforded more protection when it…

      Read more
    4. Stephen H

      In a contemplative fashion...

      In reply to John Holmes

      John, Gilbert and Sullivan travelled to the US specifically to try to protect The Pirates of Penzance from - well - piracy. It was first performed in the US rather than the UK, but pirates still had their way with it.

  7. Stephen H

    In a contemplative fashion...

    Write to your representatives. Email them. Ring them. The proposed trade agreement is an unnecessary evil, designed for large corporations and against the interests of the people whose protection is the purpose of government. The secrecy surrounding the TPP makes very clear that it is not in the interests of the average person.

  8. Reg Nansen


    Thank you Kylar and big cred to The Conversation for bringing the #TPPA to light. Huge thanks to #Wikileaks too for enabling this conversation. Our Government (of whatever persuasion) works for us and should not keep these trade deals secret. That they have tried to reinforces suspected bias towards corporations at the expense of Australian taxpayers. Hopefully The(se) Conversation(s) will force this issue into Parliament with the proper examination of all of the complete text. That the US is trying to fast track the #TPPA to be signed before chrismas should sound warning bells to all. Excellent work folks!

  9. Reg Nansen


    One of the most appalling aspects of the ISDS is that our agriculture and clean food systems could be under threat by biotech who would be enabled to seek compensation for not permitting the cultivation of all and sundry GM organisms. From the leaked chapter p2 AU/PE: For the purpose of this Chapter “intellectual property” includes rights in plant varieties. Biotech would have cart blanche even though most Australians don't want to eat #GMOs. The #TPPA is one of the biggest threats to our democracy and representative government ever proposed. Our Government and opposition should withdraw immediately from this abhorrent trade deal.

  10. Alan John Hunter


    We got and are still getting screwed on the last FTA with the US.

    Now we are going to get screwed again, USA does not do deals unless there is an advantage to them, most countries that have FTA's with the US wish they didn't.
    Only fools and sycophants like Howard and Abbott like FTA's, as Mark Latham expressed it so elegantly "A conga line of suckholes".

    Google, trade USA/Australia and you will see,trade has increased but our percentage of trade with USA has dropped.

    FTA's are far from free trade in fact they are the opposite, they are preferential trade agreements, which fly in the face of libertine principles of the IPA, who probably support them.

  11. Daniel Boon

    logged in via LinkedIn

    So what can we do to stop it?

  12. wilma western

    logged in via email

    It is simply outrageous that there is any possibility of the Abbott govt signing up to a treaty/international agreements that take away the sovereignty of out courts and legislation - out sovereign right to democratically decide our own environmental and consumer protections.

    The government that carries on about "sovereign borders " looks like signing away even more important "sovereignty" -that of our own selfdetermination.

    SAs well the protections for big pharma could potentially wreck our pharmaceutical benefits system through inflated pricing.