A secret copyright game-changer

iiNet may have won the latest round of the internet piracy battle, but a clandestine shake-up of international copyright laws looming on the horizon could well render Australia's laws obsolete.

If you want something done with least delay, a doubt-free dictatorship is the way to go. 

And it seems that’s what a number of Pacific-rim countries, including Australia and New Zealand believe when it comes to stitching up a trade deal for the 21st century.  And the deal is about more than trade: it is intended to regulate every aspect of the commercial relations between the subscribing countries and prescribe penalties for transgressions.

Where's the transparency?

It’s called the Trans-Pacific Partnership Agreement (TPP) and if you have not heard of it, the reason is simple.  All negotiations have been done in secret, the only breach in the sound proof security curtain being a leak of the US’s draft of the Intellectual Property (IP) chapter of the agreement back in February 2011. 

And it is in that sector of the Australian economy that any agreement is likely to have most impact.  It is also in that sector there seems to have been zero consultation.

While most of the countries are nominally democratic, (Chile, Malaysia, United States, Australia, New Zealand Peru and Singapore–some more a ‘guided’ democracy), there is also a sultanate (Brunei Darussalam) and a dictatorship of the proletariat (Vietnam).

First up, in international relations at a country to country level, there is no such thing as altruism.  Everyone is trying to maximise national benefit, however flexibly that might subsequently be defined.  Second, there is not much two or more consenting countries cannot agree to do in the privacy of their own diplomatic negotiations, and then tell their citizens that is for the best in the best of all possible worlds.

That’s why transparency of processes that shape domestic and foreign policy lies at the heart of a healthy democracy.

That is why the secrecy surrounding the TTP, the earlier Anti-counterfeiting Trade Agreement (ACTA) that Australia may endorse, and the comparative secrecy surrounding the Australia-US Free Trade Agreement is profoundly worrying.

There’s a third issue too.  The TTP and ACTA negotiations ignored the World Trade Organisation (WTO) – the internationally agreed forum established by the Bretton Woods agreement of 1948 – and spin-off forums like the World Intellectual Property Organisation (WIPO). All of which were specifically created as transparent venues for settling international issues.

The reasons for governments to bypass these established forums have not been disclosed, but speed of completion and realising the political and economic agendas of the big corporate backers, with least compromise or exposure, would seem likely goals.

National negotiators for the TTP met in Melbourne, in secret, two months ago for the eleventh round of negotiations.  Originally negotiations were to have been complete for the 19th meeting of the Asia-Pacific Economic Cooperation forum (APEC) in Hawaii in November 2011, but the deadline for agreement is now reported to be July 2012.

The chapter on Intellectual Property is likely to cover copyright, trademarks, patents and geographical indications and, perhaps, the pharmacopoeia of native plants and medicines.

Its provisions will shape the IP industries in the subscribing countries, all of which are, with the exception of the United States, net importers of IP.  Thus in this field the US is likely to call the shots in negotiations and the leaked US IP draft may provide some clues.

Forcing government's hand

The US Electronic Frontier Foundation (EFF), a digital industry watchdog, says the leaked chapter demands a more restrictive IP regime that is dictated by the earlier ACTA.  It demands a government:

  • Treat temporary reproductions of copyrighted works without copyright holders' authorization as copyright infringement.  This was discussed but rejected at the 1996 intergovernmental conference that created two key copyright treaties, the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.
  • Ban parallel importation of genuine goods acquired from other countries without the authorization of copyright owners.
  • Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of IP.  The new provision would be life 70 years for works created by individuals and, following the US- Oman Free Trade Agreement, either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).
  • Adopt laws banning circumvention of digital locks (technological protection measures or TPMs) that mirror the US Digital Millennium Copyright Act (DMCA) and treat violation of the TPM provisions as a separate offence, even when no copyright infringement is involved. 

This would require countries like New Zealand to completely rewrite its innovative 2008 copyright law.  It would also override Australia’s carefully-crafted 2007 technological protection measure regime exclusions for region-coding on movies on DVDs, videogames and players, and for embedded software in devices that restrict access to goods and services for the device.  This was an effort by Australia to avoid the pitfalls of US digital locks provisions where business competitors have used the digital copyright act to try to block printer cartridge refill services, competing garage door openers and to lock mobile phones to particular network providers. 

  • Adopt criminal sanctions for copyright infringement that is done without a commercial motivation, based on the provisions of the 1997 US No Electronic Theft Act.
  • Adopt the US DMCA Internet Intermediaries copyright safe harbor regime in its entirety.  This would require Chile to rewrite its forward-looking 2010 copyright law that currently provides for a judicial notice and takedown regime, which provides greater protection to Internet users’ expression and privacy than the DMCA’s copyright safe harbor regime.

 To this list global law firm DLA Piper adds:

  • Legal incentives for Internet Service Providers (ISPs) to cooperate with copyright owners and requiring identification of Internet users by the ISP.
  • Imposing statutory damages for copyright, trademark and patent infringement.
  • Protecting geographical indicators, sounds and scents under trademark laws.
  • Reducing procedural difficulties in obtaining patents, extending the scope of patent monopoly rights and limiting the capacity to challenge patents.
  • Data exclusivity - preventing generic manufacturers of pharmaceuticals from using clinical trial, efficacy and safety data of innovators to register generic versions of patented drugs (the TPP text allows public health exceptions in accordance with TRIPS*).

 The EFF is candid in its condemnations of the draft US IP chapter:

Unable to avoid the mistakes of the US

In short, countries would have to abandon any efforts to learn from the mistakes of the US experience over the last 12 years, and adopt many of the most controversial aspects of US copyright law in their entirety.  At the same time, the US IP chapter does not export the limitations and exceptions in the US copyright regime like fair use, which have enabled freedom of expression and technological innovation to flourish in the US   It includes only a placeholder for exceptions and limitations. This raises serious concerns about other countries’ sovereignty and the ability of national governments to set laws and policies to meet their domestic priorities.

There is little doubt, they say, that the proposed draft advances the agenda of the US entertainment and pharmaceutical industries, but omits the flexibility and recognition of exceptions that protect Internet users and technology innovators.

Ellen Broad, director of the Canberra-based Australian Digital Alliance, somewhat sardonically, expresses optimism. "Perhaps since February 2011, negotiators responsible for the IP chapter have been developing a positive IP agenda for the Asia-Pacific region, to assist in the breakdown of barriers and obstacles to trade" she wrote on her blog.

“What might this agenda include?’ she mused.  ‘Provisions to support a free and open internet?  A prohibition on extraterritorial website seizure without judicial review?  A provision to facilitate the cross-border transfer of works copied under an exception for people with a visual impairment?  Simply, a requirement for open-ended exceptions?” Broad wrote.

 The experience of one Australian IP industry, the Australian screen industries during the negotiation of the Australia-US Free Trade Agreement, admits no cause for optimism. Australia was doing reasonably well on that hugely tilted playing field, largely due to the Australian Film Commission’s efforts in the US, until the Howard government told the Commission, in no uncertain terms, to pull its head in.

The rest is history. 

So might also be Australia IP ambitions.

* Trade-Related Aspects of Intellectual Property Rights

Dr Vincent O'Donnell is the media policy editor at Screen Hub and an executive producer at Arts Alive. This article was first published in Screen Hub. Republished with permission.

This column first appeared in substance in Screen Hub of 23 April 2012.