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.

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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10 thoughts on “Are we still America’s deputy IP sheriff in the Asia-Pacific?

  1. cairns50

    with respect to brunei being a equal partner in this agreement is nothing more than a joke

    it is ruled by a absolute heriditory monarch who just happens to part own with shell the countries oil and gas reserves

  2. shanghai

    We’ll most likely roll over once more.
    Just a couple of comments on my experience with the free trade agreement to date:
    Our company has been successful in selling Australian software into a number of US government and education organisations. It has been difficult. Internal communications from one customer clearly demonstrated the fact that any decision to acquire non-US product was subject to serious review and justification.
    Ironically, we were also advised to tender for Australian Govt o opportunities as our US company to ensure that we had the best shot at Australian Govt deals.
    It’s also interesting to note that as part of the free trade agreement the Australian position on Australian lodged patents appears to have been compromised to the point where we will simply follow the position of the US Patent Office.
    The IP farce is simply another manifestation of the current state we are in, whether by design or by ineptitude.

  3. jj mick

    Australia has a bad reputation is being the 52nd state of the US. When the president says jump we say “how high”. I realised this the day Microsoft sent a jet into Sydney airport to take a young Australian citizen to the US to stand trial. The young man was charged with breaking Microsoft’s source code and to my understanding was never heard from again. His sentence was also never reported in the mainstream press.

    Never believe that Australia makes its own decisions. It is clear that decisions may be run past our friends in the US for clearance before being set in concrete here.

  4. bluepoppy

    Governments are moving too far away from the grass roots and failing to see the big picture and long term consequences. These FTAs often pushed for the benefit of a minority rather than the benefit of the nation as a whole. Reforms to democratic process is what is needed so those that are elected to represent do so with a mandate (real) from the public.

  5. michael r james

    Of course the TPPs most significant provisions are to shackle governments everywhere, indeed to make them agents to enforce multinational’s interests over their own national interests. Even draconian restrictions with respect to individual access to the internet. Not sure but Roxon’s bill on internet records being kept for 2 years might be a part of this. No one knows because for the last 18 months the deliberations and negotiations have been kept secret.

    And as has been pointed out elsewhere, the TPP may concern these 10 countries (and almost certainly Japan & Canada) but it will impact upon any country trading with those ten.

    It risks being an epic disaster and we can only hope that corporate greed has overstepped the mark by so much that it will provoke a backlash.

  6. Owen Gary


    Its really ironic about the young fellow being grabbed by Microsoft for breaking its source code.
    It was a young Australian software engineer who designed it and was stolen from him by Microsoft in the 1st place, so much for patents.

    Remember Mark Vaile from the Nationals who with the Coalition agreed to all of the FTA with the U.S in the 1st place, telling us how wonderful it would be with America as our trading partner as they maintained their tariffs on our farmers & we completely removed ours. Mr Vaile & his party have been a Judas to Aussie farmers as well as all other sectors of the Australian public, I hope him in hell for his 60 shekels of silver. There are provisions in the Magna Carta for “Lawful Rebellion” against this kind of tyranny, last I checked we are still part of the Westminster System although there are those who are trying to pull us away from this & align us to a U.S style of Government.

    People across the globe are already aware that these fiends’ are trying to enforce themselves as information sheriffs & instantaneous media is a target.

    It is quite obvious that those who control are getting worried that their reign is coming to an end, hence control of all information especially when backed up with surveillance laws intended to intimidate & victimize Joe public.

    There was never anything Free in the FTA, it was designed as another mechanism of absolute control.

  7. AR

    An ant with an elephant for a partner is at a distinct disadvantage. Any country trying to have an equal relationship with a Hegemon is delusional.
    Then there is Oz/US – a satrap at best, a colony at worst and a vassal in reality.
    Poor bugger, my country, that has such wretched inadequates in office, meretricious mediocrities, eager to do as they are bid by their masters, not the electorate.

  8. drsmithy

    I realised this the day Microsoft sent a jet into Sydney airport to take a young Australian citizen to the US to stand trial. The young man was charged with breaking Microsoft’s source code and to my understanding was never heard from again. His sentence was also never reported in the mainstream press.

    What was his name and what was he accused of doing ?

  9. Dogs breakfast

    Roll over, stay, play dead!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    The original FTA that Vaile delivered at Howard’s insistence was just embarrassing in its lap-doggedness.

    Now rolling over on IP and patents is such a great idea, because USA has the worst, most illogical approach to patents. Well done little fella, here’s a biscuit.

    The genome patents were a prime example of, ahem, patent stupidity.

    Onward we roll, over and over.

  10. Ian

    Why is the TPP secret and from whom is it being kept secret – not the corporate beneficiaries I have no doubt? In fact I am pretty sure they have a hand in drafting it.

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