We were in the foyer of the Department of Foreign Affairs and Trade (DFAT) in Canberra and the industry briefing for the Intellectual Property (IP) chapter of the Trans-Pacific Partnership Agreement (TPPA) had just concluded. ‘You’re lucky you’re in the Services chapter’, is what a jovial Tom* from information technology said to me, ‘the IP chapter is a real problem.’
How big a problem? Well, let’s just say that the government negotiators and the representative of the IP industry aren’t exactly following the same playbook.
Regular Technology Spectator readers may recall that the TPPA is a proposed trade agreement with ‘the lot’: a trade agreement ‘for the 21st Century’. It’s intended to regulate all commercial relations between the subscribing countries indefinitely. It builds upon Australia’s existing bilateral and multinational agreement.
It also draws together a curious assortment of Pacific-rim, plus a bit, countries. There are the nominally democratic countries of Chile, Malaysia, United States, Australia, New Zealand, Peru and Singapore (some are more guided, patrician democracies or nascent theocracies, secular or religious). There is also the Sultanate of Brunei Darussalam, something of an absolute monarchy, and a proud dictatorship of the proletariat, Vietnam.
The present nine members of the TPPA may soon be joined by Mexico, Japan and Canada, if they like the deal, and can convince the existing members of their several countries’ competence and capability to abide by the deal. The agreement is also in some ways unfinished business for some members of APEC, which contains groups of countries with incompatible understandings of the phrase ‘economic cooperation’. For some, those with an Anglo-American perspectives, it meant trade and investment liberalisation, as in free trade; for many others, many being members of ASEAN, it meant regional economic consolidation. The two views were irreconcilable and APEC has now floundered.
China, it seems, is not part of the act.
The Canberra briefing
The briefing on 24 May was to update the IP industry on the deliberations in the 12th round of negotiation in Dallas, negotiations that spent seven day on the IP chapter. I had been warned that attending DFAT briefings was not always a fulfilling experience but, as the screen industries are major producers of Australian-owned and traded intellectual property, I dutifully reported at DFAT’s beige citadel in the shadow of our nation’s Parliament House
The briefing, like the curate’s egg, was good in part, but little was directly relevant to the screen industries. However, it did set the scene for jovial Tom's sign-off, as it dramatised a deep schism between the government negotiators and the representative of the industry whose future interests the negotiators were, presumably, seeking to ensure.
The Dallas chapter
Last month, the seven days in Dallas were spent on three aspects of the IP chapter: enforcement; patents; and traditional knowledge, cultural expression and (indigenous) genetic resources. The issues of genetic drugs, pharmaceutical patents, ever-greening of those patents, and the integrity of Australia Pharmaceutical Benefits Scheme, an Australian social policy fenced in by foreign, mainly US, patents and interests was not discussed.
The patents discussion has wide ramifications to other IP issues because of the precedents it may set. The discussion dwelt on three issues: what may be patented; what are the qualities that need be demonstrated for a successful patent application; and how the process might proceed in different countries so the outcomes were comparable and internationally valid. No problems there, though one attendee did say the practice of IT companies to add a line of code to the end of an old program to claim a new copyright had to end. However, the idea that computer program should never be subject of patent, because of the chilling effects such patents would have on innovation, was not discussed in Dallas.
Australia's starting position
The negotiators’ global starting position, repeated frequently during the briefing in Canberra, is that no part of the TPPA agreement will require any change to existing Australia law.
This position may be conscientiously held and pursued but, with Australia’s negotiations on copyright at the Australia-US Free Trade Agreement (AUSFTA) as distinguished as Custer’s Last Stand, many attendees had little confidence in the undertaking. The scepticism was heightened when one attendee declared that it was just impossible for IT stakeholders to provide advise to DFAT because, unlike the US, Australia has no ‘cleared advisors’ from the sector, allowed inside the negotiators’ tent. Why? It seems that the four years of negotiation did not allow sufficient time for a security clearance to be obtained for any potential ‘cleared advisor’. DFAT staff must be born with one.
IT's big issue
But the big issue, that returned time and again, was the economic impact of potential outcomes for the IT sector. And with no details on the table and available for discussion and analysis, the latest briefing had fine moments of passive-aggressive display.
Displaying terrier like qualities also, one attendee read from the screen of his laptop portions of Australia government reports. He simply asked the negotiators to explain the import of this or that government policy and harmonise the policy with their actions, though scantly reported as they were.
For example, the Productivity Commission, it seems, told the government that no international agreement should be concluded if there was no economic benefit to Australia. So where was the economic benefit of the IP chapter, the IT sector wanted to know?
‘But answer came there none’, to quote Louis Carol.
The bottom line was clear. The IT sector and some academic supporters had no faith in the government's IP negotiators or the consultative process put in place by government.
So who cares? Raise you hands, followed by your voices, if only out of self-interest.
* The name has been changed. I didn’t ask ‘Tom’ if I could quote him.
Dr Vincent O'Donnell is the media policy editor at Screen Hub and an executive producer at Arts Alive. This article is an edited version of an article first published in Screen Hub.