Copyright in the Trans-Pacific Partnership: Based on the leaked IP Chapter of May 2014

Unlike the rest of the secret TPP trade deal, we actually know a lot about the IP chapter.  A series of leaks, the most recent of the May 2014 version of the negotiating text means that we can analyse the proposals in some detail.

The chapter has been subject to a fair amount of criticism, in current form it has the ability to impact negatively upon economic growth, innovation policy, freedom of expression and public health

Having said that, it has improved since the last leaked version we have seen, with some of the most ridiculous ambit claims (such as the US move to ban all parallel imports) removed from the table.  However, there are still proposals and language on the table which is cause for serious concern, highlighted below.  Overall the chapter is overly detailed and rigid, which may not sound particularly ominous but has the ability to curtail domestic policy making and cause compliance issues. It also lacks safeguards against anti-competitive behaviour and protective of the public interest. 

We’d agree with the sentiments of the Competition Policy Review (Draft Report):

IP rights can help to break down barriers to entry but can also, when applied inappropriately, reduce exposure to competition and erect long‑lasting barriers to entry that fail to serve Australia’s interests over the longer term. This risk is especially prevalent in commitments entered into as part of international trade agreements.

Summary of Specific Concerns

Lack of balance and public interest safeguards

The current IP chapter disproportionately focuses on rightsholder rights and strong enforcement,  lacking reference to balancing considerations such as competition policy, innovation, access to knowledge, transfer of technology and dissemination of culture.  Strong preamble, objectives and principles provisions  to protect the public interest in interpretation and implementation are needed,  especially if provisions are subject to an ISDS clause.

Disproportionate and inappropriate enforcement provisions

Australia already has strong enforcement provisions for copyright including 33 criminal offences.  On a straight reading, the TPP seeks to punish as criminal minor actions such as teenagers using mobile phone cameras in cinemas and businesses forwarding emails containing third party material. 

Restricting the exceptions allowed for the reproduction right in the digital environment

Sending emails, buffering and caching are common processes that make multiple copies of works in order to function.  The exception in the TPP may not be wide enough to permit all of these, or future technological processes.

Extensions of the Copyright term

Australia has already lengthened its copyright terms under AUSFTA, at an estimated cost of $88 million a year.  Extensions of 30 years for works 25 years for sound recordings and films are being proposed.  

Inconsistent TPM provisions

The new TPM proposals are unclear, but there is a possibility that they would implement a regime at odds with AUSFTA.

The good news

The treaty now contains reference to the needs of the blind and visually impaired, and Australia is suggesting extension to the perceptually disabled. The ISP and TPM provisions, while still far from decided, seem to be heading towards more flexible implementation and Australia is pushing to ensure that service providers are not forced to carry a disproportionate responsibility for costs.  The US has removed proposal to ban all parallel imports.

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