The federal government is involved in secret trade negotiations that would restore many of the draconian copyright provisions the United States was prevented from imposing in the Anti-Counterfeiting Trade Agreement just a few months ago.

Yesterday a secret draft of the intellectual property chapter of the “Trans-Pacific Partnership Agreement” currently being negotiated in Santiago was leaked to the Knowledge Ecology International site, revealing the full extent to which the US wants to re-fight the battle lost in ACTA.

The draft is available to governments and a variety of industry “stakeholders” (KEI revealed the industry agenda for the TPP in December) but not to the public. The TPP is a free trade agreement being negotiated between the US, Australia, New Zealand, Chile, Singapore, Brunei, Vietnam, Malaysia and Peru.

Last year a US push to impose draconian restrictions on ISPs, consumers and developing countries at the behest of the copyright and pharmaceuticals industries was thwarted when the final text of the ACTA treaty dropped a number of controversial requirements. The failed ACTA measures the US is trying to revive via the TPP include:

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  • A requirement (s.14) that signatories legislate to establish a power to arbitrarily search for “counterfeit goods” and “pirated copyright material” in imports and exports, which was only allowed for and not mandated in ACTA. However, signatories will still be allowed — if they wish — to exclude personal luggage (eg: laptops) from searches, as per ACTA.
  • Pre-established damages. The US strongly pushed for “pre-established damages” being available to rights holders in ACTA, because they’re inevitably far higher than any actual damages that rights holders such as studios or music companies can demonstrate they have incurred. This was defeated in the final ACTA draft, but the TPP (s.12) requires that signatories make available pre-established damages for rights holders. The TPP draft would also establish that damages be based on “suggested retail prices” rather than actual costs, in effect allowing rights holders a role in determining the level of damages.
  • Copyright violations carried out even for no commercial gain would be treated as criminal offences. The criminalisation of downloading copyright material — in essence, the outsourcing of what has long been the civil enforcement of copyright to government — is a key goal of the copyright industry, as it will shift the cost of enforcing copyright from the industry itself onto taxpayers. This was headed off in ACTA with the exclusion of “rights infringements that have no direct or indirect motivation of financial gain”. The TPP draft requires that criminalisation extend to “significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain”.
  • Goods “suspected” of being counterfeit can now be stopped by Customs officials, restoring a requirement lost in ACTA, but it must be based on prima facie evidence.

The draft also seeks to extend US copyright laws internationally, imposing the US’ Walt Disney-based 70-year copyright period, mandating legislation that requires ISPs to cut off from the internet “repeat infringers”, bans parallel trade of copyright goods of any kind (which potentially may drive Australian CD prices back up to the levels seen before the Howard government allowed parallel imports), and require ISPs to hand over all information about its customers if they are in any way connected to infringing activity (ie: even if you clicked on a website containing downloads, without ever downloading anything).

As lawyer Leanne O’Donnell pointed out this morning via Twitter, the inclusion of IP-related clauses in the TPP directly contradicts the view of the Productivity Commission, which criticised the inclusion of IP provisions in trade agreements in a December report:

“The Commission considers that Australia should not generally seek to include IP provisions in further BRTAs, and that any IP provisions that are proposed for a particular agreement should only be included after an economic assessment of the impacts, including on consumers, in Australia and partner countries.”

Having failed to impose these sorts of draconian and invasive measures worldwide via the ACTA, the US is now trying to impose them on a smaller and more pliable group, including a docile Australian government eager to demonstrate its solidarity with the US. If it can lock in these requirements in a small multitateral treaty like this, it may become a template for future free trade and multilateral agreements.

And again, the US push is being conducted in secret, with only big industry players given privileged access to the drafts for comment. At the time of the defeat of the ACTA push, some observers predicted the US would simply keep on pushing to impose the sorts of measures in other fora. That prediction has turned out to be entirely correct.