Overview of TPP's Copyright Controversies in Australia:
The strengthening of copyright protections via trade agreements has been a subject of great controversy in Australia. In 2004, an Australian Senate Committee on the Free Trade Agreement between Australia and the United States of America found that the changes required to the Australian IP regime as a result of the FTA could have a negative impact on the Australian economy as a whole. These findings were corroborated in a 2010 report by the Australian Productivity Commission, the government's independent research and advisory body, which found that "the extension of copyright provisions (particularly for existing works) has clearly imposed a net cost on the Australian economy." See the full report here.
While IP creators and owners, particularly large US copyright-owning corporations, stand to benefit from the greater IP protection, the changes may impose additional costs on Australian consumers and researchers. As a net importer of IP, the changes could have a negative impact on the Australian economy as a whole. Further, the changes required by the AUSFTA are essentially trade restrictive measures rather than trade liberalising ones as they strengthen the monopoly of IP owners. In many cases, the changes required by the AUSFTA have gone against the recommendations of IP law reform processes in Australia over the last few years. -Excerpt from the Final Report of the Select Committee on the Free Trade Agreement between Australia and the United States of America of the Australian Senate, August 2004
Find the full report here.
Yet, leaked texts have shown that Australia has sided with the United States on certain copyright-related provisions in the TPP. Australia has supported US proposals for limiting the use of certain flexibilities and expanding the scope of the three-step test. Australia and the United States have also opposed language that would facilitate the extension of current exceptions and limitations in domestic laws into digital environments.
"NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to."
"US/AU propose: With respect to this Article and Articles 5 and 6, each party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder."
-From leaked TPP text, on copyright limitations and exceptions
Australia's IP agenda in the TPP has received strong opposition from within the government. Following the leaked texts on limitations and exceptions, Greens Senator Scott Ludlam criticized trade officials for supporting a proposal that would hurt Australian interests. On May 31, 2012, in a Senate Foreign Affairs Defence and Trade Committee hearing on budget estimates, Ludlam questioned the chief Australian TPP negotiator, Hamish McCormick, on the economic gains for Australia in the TPP, the lack of transparency and the difficulties of conducting a public interest analysis, and the leaked IP text, among other issues. He specifically questioned McCormick about concerns with language on rigid parallel importations restrictions in the IP text and Australia's position on ACTA-style language in the TPP. See an excerpt from the hearing on Ludlam's website here. For more information on the discussion on expenditures incurred by the Australian government in trade agreement negotiations including the TPP, see Australian Digital Alliance's blog, "Shedding light on TPPA questions at budget estimates."
The Trans-Pacific Partnership Agreement, if the USA gets its way, will cause huge problems for Australians, but our Federal Government is backing Washington to the hilt.
New Zealand, with the support of Chile, Malaysia, Brunei and Vietnam, proposed this clause to permit a signatory to ‘carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws'. Only the United States and our own government oppose this perfectly reasonable provision. Why is the Government promoting the erosion of our independence in this way?
-Greens Senator Scott Ludlam
Australian digital rights groups, including Electronic Frontiers Australia and the Australian Digital Alliance are also urging the Australian government to resist US copyright demands. David Cake, Chair of Electronic Frontiers Australia, explains: “The TPP presents serious risks to the scope for the Australian Law Reform Commission’s current review of Australia’s copyright regime to implement much-needed changes that would provide a better balance between the rights of users and content owners. EFA strongly supports the call for a ‘Fair Deal’ in relation to the intellectual property components of the TPP which would benefit content creators and users in Australia and across all countries involved, not just large corporate interests.” Both groups are currently partners in the international Fair Deal Coalition.
The Australian Law Reform Commission (ALRC) is currently conducting an Inquiry into Copyright and the Digital Economy to determine whether existing exceptions to copyright in Australian law are appropriate for adapting to the modern digital economy and whether further exceptions are necessary. In a discussion paper published in June 2013 as part of the second stage in the consultation process, the ALRC stated that changes in the development of the digital economy, among other changes, provide evidence in support of introducing a broad, flexible exception to copyright in Australian law. (See discussion paper here.) However, Australia’s ability to implement such measures could be severely curtailed by the US IP proposal to the TPP which contains provisions that advance even stronger, stricter, and longer copyright protections and enforcement measures.