The cost of the TPP: Learning from Australia’s copyright experience under AUSTFA

As the Trans-Pacific Partnership looks close to being settled, the warning bells over the Intellectual Property Chapter are getting louder.  With Wikileaks’ publication of a leaked version of the negotiating text, we finally have some firm knowledge about what is at stake.  Notably we can now see the push, particularly from the US, for provisions that not just go further than TRIPS and ACTA, but further than the restrictive copyright provisions Australia agreed to under the Australian-US Free Trade Agreement (AUSTFA). 

Australia’s experience under AUSTFA should be a warning to other countries considering signing up to the US copyright proposals in the TPP. 

Under AUSTFA, Australia agreed to substantial changes to its copyright rules, extending copyright term and increasing enforcement and protections for copyright holders.  This was despite the fact that Australia already had a sophisticated copyright regime compliant with international obligations.  These changes, negotiated in secret and under pressure from the US, have worked to the detriment of users, the tech sector industries and public-good bodies such as libraries and universities. 

‘A net loss’ is how the Productivity Commission labelled the copyright obligations.  The copyright extension alone was estimated to cost up to $88 million per year in revenue flowing overseas.  Meanwhile the provisions on digital locks (technological protection measures or TPMs) cause headaches for users and public-good institutions such as schools and libraries.  By criminalising circumvention of digital locks, users cannot access protected content even if they have a legitimate right to use that content.  The exceptions to this criminalisation are narrow and insufficient.  The process put in place to add new exceptions (reviewed every three years) has been administratively unworkable, the 2012 review still hasn’t seen light of day.  Meanwhile a ‘lamentable and inexcusable flaw’ means that for some exceptions even where breaking the lock may be permitted, providing the equipment needed to do it is illegal, rendering the exception next to useless.  This complicated approach to TPM enforcement helps to entrench the geo-market segmentation that sees Australians paying around 50% more than US citizens for the same goods. 

And what about the internet?  Provisions in the TPP have the potential to bring the internet to a grinding halt, through the extension of reproduction right into the digital context.  Australia’s experience from AUSTFA is that the allowed copyright exceptions for ‘technological processes’ are manifestly inadequate.  As the Australian Competition and Consumer Commission points out, the current provisions may not fully cover indexing and caching.   As eBay has argued, lack of ‘protection for such activities makes Australia an unattractive place to locate facilities that deliver, in particular, data analysis and search services over the internet.’  Telcos and universities are concerned that cloud computing isn’t supported, putting Australia in a technological backwater. 

Alarmingly, the TPP proposals being discussed this weekend in Singapore go further than those of AUSTFA.  The increasing move towards criminalisation, provisions on ISP liability, formalities and parallel imports could all have long-lasting consequences for Australia and other countries. 

A secretly negotiated trade deal is not the right place for overly controlling and technical copyright provisions.  Australia’s experience under AUSTFA should stand as warning to other countries considering their position in the TPP. 

For a detailed assessment of the TPP provisions and their relation to international agreements, including AUSTFA, check out Kimberlee Weatherall’s papers on copyright and enforcement.  

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