Trade Minister Andrew Robb at TPP negotiations

Australia is only just in compliance with the Trans-Pacific Partnership agreement’s intellectual property chapter only because the government hastily passed piracy site-blocking laws earlier this year.

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In the early hours of Saturday morning, Australian time, WikiLeaks published the final intellectual property chapter from the Trans-Pacific Partnership agreement, which was singed by 12 countries including Australia, New Zealand, Canada, the United States, Japan and others last week.

There won’t be an official release of the TPP agreement for public scrutiny for weeks, but the leak appears to be legitimate based on public comments made by Trade Minister Andrew Robb and others. There had been leaks of the draft IP chapter during the negotiations, and the final leaked chapter is not too dissimilar from some of the negotiated clauses in those leaks.

Upon the signing of the agreement, Prime Minister Malcolm Turnbull said that the requirements of the TPP agreement in the IP chapter were entirely consistent with Australian law. This appears to be the case, for now, but it is only because Australia signed away much of its IP rights to the US a long time ago.

The copyright term of “author’s life + 70 years”, which is angering digital rights advocates in countries like New Zealand and Japan, is already in place in Australia as part of the Australia-US Free Trade Agreement.

There had been concern that a ban on bypassing technological protection measures — aka banning people from using VPNs and other services to access Netflix or Hulu outside Australia — might be included, but the relevant clause only demands it to be a crime with penalties applied for people who do it for financial gain or commercial advantage.

The chapter contains the usual provisions for internet service providers to be exempt from being liable for copyright infringement done by their users, provided they jump certain hurdles like ensuring that content they have control over — like a music file hosted on one of their servers — is quickly deleted. As per the three-strikes notice scheme currently sitting at a stalemate, ISPs must also make it possible for rights holders to access customer information for those customers alleged to have downloaded an infringing TV show, film or music file.

The most interesting part of the copyright requirements of the TPP is that the annex calls for signatory countries to “induce” ISPs to “remove or disable access to material upon becoming aware of a decision of a court to the effect that the person storing the material infringes copyright of the material”. This is vague, but it implies that once a court orders that a website is infringing on copyright, it must be disabled or blocked by ISPs if they want to be protected from being held liable for copyright infringement.

Handily, the Australian government can say it is already compliant with this part of the TPP agreement because legislation passed at the end of June allows rights holders to go to court to get a court order to block file-sharing websites such as The Pirate Bay.

The government passed this legislation in a matter of weeks, with only one public hearing for the Senate committee that looked at the legislation. It was unclear why the bill was rushed through Parliament, and to date, no company has brought a case to block websites.

Foxtel has told Crikey a number of times it would bring a case to court in October but has yet to file one. A spokesperson for Foxtel could not say when the case might make its way to court.

The rush to comply with the TPP could be one reason. Had the TPP been signed earlier in the year, when it was supposed to be signed, Australia could not have claimed to have been fully compliant with the TPP on copyright law because the site-blocking bill had yet to pass.

Notably, while all the pro-rights holder clauses in the TPP appear mandatory, the parts about making it easier to have exceptions for copyright infringement, i.e. fair use, must only be “considered” by the signatory nations, and are not mandatory.

The real sticking point for intellectual property in the TPP is whether the slightly watered-down investor-state dispute provisions of the TPP will still lead to international companies targeting the government over changes to IP law.

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Peter Fray
Peter Fray
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