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Aug 6, 2012

Are we still America's deputy IP sheriff in the Asia-Pacific?

A new leak on the draft Trans-Pacific Partnership Agreement text reveals Australian negotiators are prepared to compromise our interests to please the US, writes copyright lawyer Kimberlee Weatherall.

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Trade negotiations don’t tend to grab headlines during Olympics season. But when you’re trying to wrap up the Asia-Pacific in a big, detailed, comprehensive preferential trade deal as soon as possible, you don’t stop just because a bunch of men are running 100 metres in sub-10 seconds.

Negotiations continue apace on the proposed Trans-Pacific Partnership Agreement (TPPA) — to include Australia, the US, New Zealand, Singapore, Chile, Peru, Vietnam, Malaysia, Brunei Darussalam and possibly Japan and Canada. The draft text of this agreement is a closely guarded secret, and most of what we know about detailed proposals comes from leaks. Knowledge Ecology International published a new leak from the intellectual property chapter on Friday.

And what’s really disturbing is that it looks like, yet again, Australian negotiators are quite prepared to compromise Australian interests and support unbalanced US proposals in copyright — even when most of our neighbours want something different. It seems like it’s “all the way with the USTR” on this one.

The leak relates to one issue: copyright exceptions. Early in July, the US announced with great fanfare that it would, for the first time, be “proposing a new provision … that will obligate parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.” This was supposed to be good news for users. Commentators expressed some cautious optimism and support for the general idea — user groups have been pushing for some time to get copyright and other IP exceptions into trade agreements to counter the ongoing expansion of the rights of IP owners.

Sadly, assuming the leak is genuine, text doesn’t match hype. In fact, it’s almost a bait and switch. What the US (and Australia, in our deputy sheriff role) is really proposing is that countries in the TPPA try to provide some balance in copyright law (“each party shall seek to achieve an appropriate balance in providing limitations or exceptions”). That’s better than nothing, sure, but it’s pretty weak, especially when compared to the language that any exceptions shall be confined according to a legal standard known as the “three step test”. I mean, you could give a country a gold star for effort based on that provision, but it would be hard to, say, argue in an international dispute that a country even very restrictive copyright laws that penalised your digital innovators wasn’t “seeking” some balance.

What’s more — and here we could get really technical, but we won’t — the rest of the proposal could actually restrict a country’s ability to introduce new exceptions in copyright, because it applies the “three step test” right across the board to all copyright and related areas — something that the major multilateral agreements like the Berne Convention and the TRIPS Agreement don’t do.  And the proposal opposes language — taken from an existing treaty — that would make it clear that exceptions can be extended in the digital environment where appropriate. The proposal seems even to lack some text that Australia negotiated into its US Free Trade Agreement to preserve a bit of room for exceptions to copyright. Are we really prepared to concede even the small victories of 2004?

Copyright exceptions matter, and not just so that ordinary people can, say, record TV to watch later or use music in a YouTube parody, even so that schools, or libraries can get access to and build on existing material. Exceptions also matter for innovators — like search engines, social networks, and all those other players that build our digital infrastructure and playgrounds. Without exceptions, there are no search engines, and no YouTube. The Australian government seemed to recognise that exceptions matter when it asked the Australian Law Reform Commission to look into whether our exceptions are adequate.

It is ironic, and sad (and a little bit of history repeating) that Australian negotiators seem to be pushing a restrictive line on exceptions that could prevent our government from adopting proposals the ALRC comes up with in the national interest. Despite the Production Commission saying this kind of thing is a bad idea and not in the national interest. Despite all the controversy we’ve been seeing over other IP agreements, like the Anti-Counterfeiting Trade Agreement.

I hope that DFAT rethinks its position. And I hope this shows, too, that all the people demanding to see TPP text before the conclusion of the agreement are right. We need the text because the devil is, as always, in the detail.

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