Here’s my column from today’s SMH, Age and Brisbane Times.
WHAT are Australia’s strategic interests when negotiating with other countries on the extent of intellectual property (IP) rights – for instance, the duration and strength of patents and copyright? It’s no Mickey Mouse question, as we’ll see, but it’s not yet properly on our agenda.
In the mid-1990s, we bowed to pressure from the US for signatories to the World Trade Organisation to extend patent life from 15 years in many countries to a minimum of 20 years.
It was never going to do much for innovation. The net present value of extending a project’s life beyond 15 years is usually very low. But it’s negligible for highly uncertain assets such as IP. And even if IP extensions were worthwhile, they could only be worthwhile for new patent terms. But the IP lobby successfully secured retrospective extensions to its existing patents.
In 1998 a retrospective extension of copyright terms in the US prevented Mickey Mouse tumbling indecorously into the public domain from the more ardent ownership of Disney Corporation, a major sponsor of the legislation.
In 2009, the firm Hospira sought to export nearly $2 billion of generic drugs from Adelaide to export markets in which the relevant patent had expired while they waited to sell into Australia once the patent had expired here. Australian officials argued that the recent Australia-US free-trade agreement AUSFTA prevented such an arrangement and forced production offshore to India. AUSFTA had also kept Mickey Mouse safe from Australia’s public domain – retrospectively extending copyright by 20 years.
That’s a small snapshot of issues we could have brought to the IP negotiation table with other countries. We’re currently negotiating the Trans Pacific Partnership (TPP) with the US and nine other Asia-Pacific countries. The Americans are taking our previous concessions and pushing for more – for instance, a further retrospective 20-year extension of copyright terms. (Will Mickey ever be free?) Yet far from pushing back with equal and opposite force, official Australian aspirations rise no higher than hanging on to our existing hodgepodge of IP compromises.
It gets worse.
Because it’s being negotiated between ”sovereigns” – that is executive branches of government – the content of the negotiations is secret. The TPP is being negotiated outside the auspices of the World Trade Organisation and the World Intellectual Property Organisation. Those organisations understand how counterproductive secrecy can be by undermining community trust and release draft text periodically throughout negotiations.
DFAT seems embarrassed by the level of secrecy and consults its little head off. But what kind of consultation can occur around a secret?
Trade Minister Craig Emerson criticised secrecy in negotiations from opposition, but signed on to it as the price of being in the tent. But suspicions thrive about secret processes and things are starting to unravel. Last week, a similar treaty – the so-called Anti-counterfeiting Trade Agreement (ACTA) – was resoundingly defeated 478-39 on the floor of the EU Parliament. Last month a committee of parliamentary backbenchers made more sense about it than the minister or his department, arguing that the agreement should not be ratified until it had been independently assessed as beneficial.
Australia could become a leader, a beacon of sense in this Kafkaesque world.
We’ve got form. We initiated the Cairns Group to enable agricultural exporters to collectively tackle a corrupt trading system that systematically disregarded their interests. And we’ve been global leaders on policy transparency for decades, requiring all domestic tariff changes to be accompanied by public expert and independent analysis.
While acknowledging the need to protect IP, we could lead the charge in forming a coalition of net importers of IP – like us and every other country in our region!
A central aim and tactic should be to introduce into IP diplomacy the same kind of transparency that the Productivity Commission (PC) enshrines in our own domestic arrangements.
And for as long as other countries stonewalled, we could go it alone, funding independent PC analysis and commentary on the various texts at any country’s request.
Even where elaborate quantitative analysis was impracticable, a simple qualitative appraisal of the kind I’ve given above would bell the cat on the most cynical abuses. It might spell the end of Mickey Mouse diplomacy.