Australia hosts secret trade agreement negotiations this week in Melbourne

This Thursday, behind closed doors in Melbourne, representatives from nine countries including Australia will take up discussions once again on an ambitious, comprehensive trade agreement for the Asia-Pacific region. Negotiators from Brunei Darussalam, Chile, Vietnam, Malaysia, the United States, Australia, New Zealand, Peru and Singapore will pore over draft treaty text of the Trans-Pacific Partnership Agreement, an agreement to cover all aspects of commercial relations between the countries, from competition and customs to e-commerce, rules of origin and labor, from textiles and apparel to telecommunications and intellectual property.

The Trans-Pacific Partnership Agreement (TPP) is being touted as a 21st century model for regional trade integration.The intellectual property chapter for the TPP will lay out lengthy, highly detailed, coverage of all aspects of IP enforcement and protection  between the nine countries. It will cover the terms of access to and use of copyright works. It will prescribe limited circumstances in which consumers are permitted to circumvent digital locks to access copyright work. It will also consider the scope of criminal penalties and statutory damages for acts of copyright infringement.

Because all of the negotiating texts are secret, it’s hard to say exactly how the IP provisions of the TPP are being drafted, and what the end agreement will look like. There has been one leaked draft of the IP chapter since negotiations began and if legitimate, indicates that there’s a lot to be anxious about.

In February 2011 a draft US proposal for the IP chapter of the TPP was leaked to the public. Among other things, the US chapter proposes to extend the copyright term for film and sound recordings by another 25 years (to life of the author + 95 years), severely constrains parallel importation, and expands criminal liability into private, non-commercial activities of Australians like copying CDs to swap with a friend.

That proposal is so outright crazy, however, that it’s hard to imagine that entering the eleventh round of TPP negotiations this week in Melbourne it’s still intact, unbracketed, on the negotiating table. Australia, for one, has maintained that it will only endorse IP standards that don’t affect domestic law, and other countries like New Zealand, who haven’t adopted IP standards as high as Australia’s, have even more to lose.

In light of the very recent conclusion of the Anti-counterfeiting Trade Agreement (ACTA), another plurilateral trade agreement stated to ‘set new standards for the enforcement of intellectual property’, it seems strange the US would even put such a proposal on the table for the TPP. ACTA, as respected Australian copyright academic Kimberlee Weatherall posited, seems to indicate a ceiling had been reached for high IP standards in international policy making.

Even if Australia is only endorsing IP provisions for the TPP that are in line with our own domestic regime, that isn’t good. Australia’s own high standards for IP enforcement and protection stem from obligations that arose under the Australian-United States Free Trade Agreement (AUSFTA), concluded in 2004. The conclusion of AUSFTA required the most significant changes to Australian IP law since the Digital Agenda amendments in 2000. The overly detailed, enforcement-focused IP chapter of that agreement imported wholesale into our domestic regime aspects of the US IP model, regardless of its compatibility with Australian IP traditions. It scrapped the balance in Australian copyright law so carefully negotiated by the Australian government and Parliament in 2000 and made it difficult for government to introduce flexible copyright policy in future.

Confirming the high standards negotiated under ACTA, and reflected in Australian law as the result of AUSFTA, sets in stone controversial IP policies whose benefits have yet to be fully understood for net-IP importing countries (although in some areas, the net detriments are readily apparent: Australia’s adoption of the life + 70 year term duration for copyright works under AUSFTA, for example, was estimated by economist Dr Philippa Dee in her report to the Senate Select Committee on AUSFTA to cost Australia up to an additional $88 million per year as the result of the term extension).

The detailed and extensive IP provisions being promoted by the US in the TPP, as it did in ACTA, AUSFTA and a series of other bilateral trade agreements throughout the mid to late 1990s, removes flexibility for countries’ legislature to amend IP policy in their own national interest. Endorsement of these high standards skips over the question altogether as to whether, economically and socially, high standards are even better for net-IP importing countries like Australia.

Eight of the nine countries negotiating the Trans-Pacific Partnership Agreement are net IP-importing countries (the United States being the obvious outlier). If the TPP is earnestly intended to “break down barriers to trade” across borders, the IP chapter should retain enough flexibility and technology neutrality to support the cross-border transfer of information, and broad access to information in the public interest.

Is there a positive IP agenda being negotiated as part of the TPP? With members of the public and civil society groups excluded from negotiations, it’s hard to say. Requests for access to draft negotiating texts by civil society organizations in the nine countries have been rejected, the papers treated in confidence purportedly to facilitate ‘candid and productive negotiations’.

A quick word on the secrecy of TPP negotiations:

First of all, it’s questionable that secrecy is ever appropriate in treaty negotiations that stand to intrude significantly into domestic policy making, and affect the public interest. Traditional vehicles for international IP policy making, being the World Intellectual Property Organisation and the World Trade Organisation, are much more transparent.

Secondly, in practice, the confidentiality of  TPP negotiating papers has proved discretionary. In the United States, for example, the United States Trade Representative has a number of ‘Advisory Committees’ who have privileged access to text and to the negotiators. With regards IP, the ‘cleared advisors’ include representatives from the International Intellectual Property Alliance, the Recording Industry Association of America, the Intellectual Property Owners Association, the Motion Picture Association of America, and the Association of American Publishers.

Thirdly, given the increasing public concern and in some cases, outright hostility towards government attempts to implement new measures for IP enforcement and protection (witnessed this year in the SOPA and PIPA protests across the United States and beyond, and the protests of thousands in Poland against EU ratification of ACTA), it simply doesn’t make good policy sense to be seen to be acting in corporate interests, rather than the interests of the public. It will damage the legitimacy of the Trans-Pacific Partnership Agreement as a platform for regional trade integration, particularly if the IP chapter is found to be lacking in appropriate safeguards in the public interest.

The recent protests against SOPA, PIPA and ACTA are no doubt in the minds of TPP negotiators as they continue to work towards a finalized agreement in Melbourne this week. The only leaked text for the IP chapter so far suggests that early TPP proposals are more enforcement focused, and lacking in balance, than the agreed text from the Anti-Counterfeiting Trade Agreement.

Perhaps since February 2011, negotiators responsible for the IP chapter have been developing a positive IP agenda for the Asia-Pacific region, to assist in the breakdown of barriers and obstacles to trade. What might this agenda include? Provisions to support a free and open internet. A prohibition on extraterritorial website seizure without judicial review. A provision to facilitate the cross-border transfer of works copied under an exception for people with a visual impairment. Simply, a requirement for open-ended exceptions.

When TPP negotiations recommence this Thursday in Melbourne, perhaps some of these suggestions will have made their way into the draft texts. At the very least, the negotiators should be working on ways to make the TPP IP chapter technology neutral, flexible, and balanced. If the TPP is to function as the ‘living agreement’ it aspires to be, capable of adapting to emerging issues and attractive to new members, balanced and flexible IP provisions will be essential to achieving that end.