Trapped in detail: Australia, Copyright and the TPP

Overly prescriptive and technical language being debated in the Trans Pacific Partnership will reduce our domestic flexibility and leave us with little room to negotiate in future international agreements. 

The leak of the August 2013 negotiating text of the TPP IP Chapter has at last given academics and civil society a chance to analyse what is on the table.  And while the text is far from agreed upon, there are some very worrying signs. 

Specific areas of concern have been raised by leading experts, lawyers and academics.  Australian Associate Professor Kimberlee Weatherall in her analysis of the text; drawing also from the work of Sean Flynn, Margot Kaminski, Andres Guadamuzm, Angela Daly and James Love; notes the following serious concerns:

  •  Extension of criminalization
  •  Restrictions, or even an outright ban, on parallel importation
  • Extension of the reproduction rights to technical/temporary copies (such as those that allow the internet to function)
  •  Inflexible proposals on intermediary liability
  •  Extension of copyright terms (already extended in Australia following AUSTFA, but there’s a further extension proposed by the US to extend the term for corporate works to 95 years)
  •  Complicated and antiquated TPM provisions, hampering people’s ability to access content protected by digital locks, even if they have a legitimate reason to access the content.
  •  Prohibitions on formalities (such as registration of copyright)
  •  Limits on internet retransmission
  • Lack of protection for exceptions for the Blind and Visually Disabled

These matters would be worrying enough if they were in current domestic legislation, with their heavy bias towards IP enforcement to the detriment of users, creators and the digital economy. 

More worrying is the way that the way these prescriptive, detailed provisions will become permanent.  With 12 member countries (and a track record of failing to agree on IP issues) once finalized the text of the treaty is going to be practically impossible to change.   

Considering the enormous changes that we have witnessed in the last couple of decades, and the raft of reform proposals on copyright domestically and internationally, we need to preserve flexibility.  We cannot afford to lock ourselves into a rigid copyright system of rules and bureaucracy. 

With the current negotiating round in Salt Lake City wrapping up, it looks as if the fissures in the IP chapter between countries remain as deep as ever.  The politicians take over now, with an agreement at Ministerial level widely expected in Singapore on the fringes of the WTO meeting in December. 

Instead of the deadlock over detail, we could simply throw the IP chapter out of the free trade talks, and agree to be bound by the plethora of international agreements that already regulate copyright.  It seems an unlikely pipe dream, but it would serve us better, now and into the future.  IP does not belong in a trade agreement, and Australia's interests are not served by agreeing to what is currently on the table.  

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