The Trans-Pacific Tango Over IP Laws that is TPP Continues

Wednesday 22 October 2014 @ 11.00 a.m. | IP & Media | Legal Research | Trade & Commerce

In recent months we have reported on the Trans-Pacific Partnership Agreement (the TPP) the conclusion of which, in the past, the Department of Foreign Affairs and Trade (DEFAT) has indicated is:

"The government’s highest regional trade negotiation priority . . . [the] agreement will build on the Trans-Pacific Strategic Economic Partnership Agreement (P4) between Brunei Darussalam, Chile, New Zealand and Singapore, which entered into force in 2006."

(See for past reports Trans-Pacific Partnership Agreement Threat to Copyright Laws and Trans-Tasman Patents and Trans-Pacific Partnership for Copyright)

However, while the Government and business are keen for the TPP to be implemented it is also seen by many legal and intellectual property (IP)experts as a surrender of control over important areas of copyright and other IP laws by Australia and other participating nations to the United States.

As recently as last Friday (17 October 2014) The Guardian and other media sources like website Computerworld were reporting:

"Leaked details of TPP negotiations reveal that Australia is pushing an approach to copyright enforcement in the region that appears to ignore broader public interest concerns in favour of the supporting rights owners".

Where and What the Leaks are About

The information leaks referred to are reported as being sourced from WikiLeaks who in a Press Release published to its website (16 October 2014) have said:

"The TPP is the world's largest economic trade agreement that will, if it comes into force, encompass more than 40 percent of the world's GDP. The intellectual property [IP] Chapter covers topics from pharmaceuticals, patent registrations and copyright issues to digital rights. Experts say it will affect freedom of information, civil liberties and access to medicines globally".

Yet, as WikiLeaks further points out, "despite the wide-ranging effects on the global population, the TPP is currently being negotiated in total secrecy by 12 countries".

Further, WikiLeaks states that for something with such great effect as the TPP potentially has:

". . . very few people, even within the negotiating countries' governments, have access to the full text of the draft agreement and the public, who it will affect most, none at all".

On the other hand, according to WikiLeaks, large corporations, are able to see portions of the text and generate a powerful lobby to effect changes on behalf of these corporate groups while at the same time reducing the force of developing country members, and giving the public at large virtually no say in the negotiation.

It is this approach which WikiLeaks' Editor-in-Chief, Julian Assange, calls: "The selective secrecy surrounding the TPP negotiations, . . ." a secrecy that seems to imply a fear of public scrutiny.

How Australia May be Affected

As The Guardian reports the TPP could affect Australian domestic law in many areas, but because of the secrecy surrounding the negotiations the citizens of member countries "do not have full access to the Australian government’s preferred outcomes".

Two key areas relating to IP affected by the TPP area with respect to patents and pharmaceuticals. Under current patent law drug companies are allowed a monopoly on drugs they have created for a defined period. This means that other companies are not allowed to copy and sell those drugs as “generic” versions for that patent period. The justification for this is that it is considered a reasonable approach which rewards the company for the initial research investment in the drugs development and which can be very costly.

When the patent period ends, cheaper drugs flood the market, bringing down the price for consumers.

Yet the leaked text of the TPP is reported as suggesting that the TPP could extend the time for which a patent period applies. If Australia agrees to this extension of the patent period, the Australian government would be allowing drug companies to keep the price of drugs and pharmaceuticals inflated for longer, making the drugs and pharmaceuticals less affordable.

Other areas of IP that could be affected are said to include internet downloads of television programs or music, even where people do not make any money out of the product. There is also even the potential for  so called "large tobacco" to override the Australian plain packaging of tobacco laws

Who is Pushing for What

The push for stronger laws for breaches of copyright, including criminal penalties for non-commercial copyright infringements is seen to be coming from the United States and Japan, who between them are the largest holders of IP involved in the TPP.

Opposition is said to be coming from Canada, New Zealand, Singapore, and other smaller Pacific Rim countries. These countries argue for the recognition of "public objectives" for IP - public objectives like the protection of public health, access to knowledge, and competition. However, the document leaked by WikiLeaks indicates that this opposition to criminal penalties for non-commercial breaches is reducing or even weakening.

Reaction - What Should Happen?

To date critics, including lawyers, IP experts and even the consumer group Choice, it is reported, have called on the Australian government to release the full text of the TPP agreement. They are calling for this to happen before it is signed so that scrutiny can take place an so as to:

". . . ensure consumers are not adversely affected by the agreement, which would essentially trump Australian law".

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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