Enforcement in the TPP - Australian analysis of the leaked IP chapter

Serious concerns about increasing criminalisation of copyright infringement and unbalanced enforcement have been raised by the leaked IP chapter of the Trans-Pacific Partnership trade agreement. 

The text, dating from August this year, was posted by wikileaks, and shows each country’s negotiating position.  In an in-depth analysis of the enforcement provisions contained in the leaked chapter, Kimberlee Weatherall, Associate Professor Sydney Law School and ADA Board member, flags several potential concerns for Australia. 

Describing the chapter as ‘radically unbalanced’ she explains:

There are still far too few safeguards for defendants and third parties in the context of IP litigation…There is a great deal of potential in this text for vastly overreaching claims by IP owners. Even if we trust that, in the end, courts can probably shoot down really excessive claims or demands, there is an increased incentive for litigation, and increased pressure on defendants to settle.

Provisions still on the table that would cause particular concern in Australia include ones that could:

  • Criminalise the activities of small business by making every single infringement with the slightest commercial element into a criminal act (potentially criminalising conduct as common as forwarding an email with third party material);
  • Criminalise the acts of private individuals by making any gain of something of value enough to bring in the full force of the criminal law (this potentially makes burning a CD for a friend  or downloading one episode of Game of Thrones a criminal offence, not a civil breach as is currently the case);
  • Put intermediaries and others under criminal threat through the use of ‘aiding and abetting’ offences for IP infringement.  Intermediaries that could be caught by these provisions include universities, schools, businesses and ISPs; 
  • Allow for disproportionate seizure of goods, with seizure of anything that was used to infringe copyright, such as servers or laptops, even 99% of its use is non-infringing.  There is currently with no requirement in the text that the penalty be proportionate to the seriousness of the infringement or the harm caused to IP. 

Noting that Australia’s position is mainly consistent with our domestic law, but often exceeds our international obligations she warns:

Many of the provisions…are untested in the courts, and as such might be things we want to change one day. The position taken here is that Australia should, at the very least, avoid adding to its international obligations, rather than simply seeking not to change Australian domestic law.

Australian domestic law also means that some provisions will impact disproportionately on Australia.  Lacking a Fair Use exception or a Bill of Rights, we lack some of the balancing safeguards of other countries. 

It is disappointing that we should have to rely on wikileaks to shed some light into this secretive process.  Previously Australian civil society and business groups who had concerns about the treaty and its potential implications have been kept in the dark, and journalists have been barred from even attending the official briefings.  Considering the worrying nature of many of these provisions, we continue to call upon the government to reject copyright proposals that restrict the open internet, access to knowledge, economic opportunity and our fundamental rights

While this leak has given us some insight into the negotiations, it dates from August. We know that negotiations have developed since then, however we don’t know what has been added to/taken from or agreed to since that point.  We are still also in the dark as to the contents of the other 25 chapters.  Therefore we continue to support Choice’s call to release the TPP text so that ordinary consumers, civil society and business can make a reasoned contribution to the discussion over the agreement’s significant impacts.