Uncovering the hidden IP secrets

Evidence is emerging that some individuals in the United States government have deep concerns about the way the Trans-Pacific Partnership Agreement (TPPA) is being negotiated.

You may recall the extraordinary degree of secrecy surrounding the TPPA negotiations and just what they mean for intellectual property (IP) and the IT sector . The negotiations officially commenced on 10 March 2010 and, though initially expected to be complete in late 2011, are expected to conclude later this year, and have been conducted in unprecedented secrecy for trade negotiations. 

The one significant breach of the cone of silence was the leak in February 2011 of a document purporting to be a US draft of the chapter on intellectual property (IP).  The US is the only net exporter of intellectual property in the group of nine countries, and possibly the only net exporter of IP in the world, so by some interesting logic, it got to write the first draft of the IP rules.

The authenticity of the leaked document remained in doubt because the Office of the US Trade Representative does not comment on the content of any leaked document. But they can probably drop the act.

The US congressman and chairman of the House Oversight Committee, Darrell Issa, (Republican-California) has released an attributable copy of the draft Intellectual Property chapter of the Trans-Pacific Partnership Agreement.  The new document confirms the authenticity of the February 2011 leaked copy.

It's easy to see Issa's action as serving a domestic US agenda.  It is, after all, a presidential election year and the TPPA has President Obama's political backing.  But legislation introduced by Senator Ron Wyden (Democrat-Oregon), requiring greater disclosure of the negotiations, suggests the concern about transparency is more bipartisan.

The Huffington Post also reports that a group Senators are considering writing to Ron Kirk, the top trade negotiator for the Obama administration, demanding more disclosure of negotiating documents. 

Indeed, because of the practice of US trade negotiators to include trusted representative of industry and commerce in the negotiating tent, some members of Congress have complained they don't get the access to trade documents that corporate officials do. 

A riled Congress man (or Congress woman) remains a potent political force in the US because party discipline is not the stranglehold on independence of action it is in Australia, a circumstance made more inflexible at present by the hung parliament, an erratic government and the predatory leaders of the Opposition.

A different story down under

However, on this side of the Pacific, concern about TPPA secrecy seems of little importance to Australian or New Zealand legislators, and certainly not the New Zealand bureaucrats who administer the cone of silence and provide draft letters to answer critics of the secrecy. 

Our one local political exception is the Australian Greens, according to Scott Ludlam senator for Western Australia.

Now a second draft TPPA document has turned up. It concerns investment policy and it's not a big step to see the potential impact of the TPPA on government investment in the Australian film, television and new media industries. 

The leaked draft of the investment chapter has been posted on the website of Citizens Trade Campaign, a long-time critic of the US administration's trade objectives, reports the Huffington Post. 

According to Lori Wallach, director of Public Citizen's Global Trade Watch, the outrageous stuff in this leaked text may well be why US trade officials have been so extremely secretive about these past two years of negotiations'.

The most controversial provisions of the draft chapter on investment lie in two areas:

First, it would be illegal for any entity to mandate in favour of locally manufactured good and services.  This will alarm nationalist interests in many countries, especially the US, who see loyalty to local products as second only to loyalty to the Christian god, and ahead of third place-getter, cleanliness.

These non-discriminatory provisions may hamper our government's investments in Australian film, television and new media production if ‘Australianess' is a precondition of investment.  It may also prevent discrimination in favour of Australian production companies over production companies, based in other member countries, when it comes to investment and, possibly, the exercise of the producer offset.

Second, the referral of investment disputes to international arbitration has especially annoyed partisan US interests.  They claims that US interests are being sold out and cite a 2008 Democrat campaign promise that says:

We will not negotiate bilateral trade agreements that stop the government from protecting the environment, food safety, or the health of its citizens; give greater rights to foreign investors than to U.S. investors; require the privatization of our vital public services; or prevent developing country governments from adopting humanitarian licensing policies to improve access to life-saving medications.

The concerns, viewed from a US perspective are these. While US corporations would continue to be subject to domestic laws and regulations on the environment, banking etc, the TPPA would allow foreign corporations operating in the US to appeal local legal or regulatory rulings before a choice of international tribunals such as the International Centre for Settlement of Investment Disputes or the United Nations Commission on International Trade Law. 

Thus an international tribunal would have power to overrule American law and impose trade sanctions on the United States for failing to abide by its rulings, a loss of national sovereignty that sticks in the craw of many US patriots.

Tipping the balance in our favour

And we feel some of this sovereignty too. Australia has extricated itself from certain aspects of the dispute resolution provisions that would apply to disputes between foreign investors and the Australian government, so maintaining a long standing position on the sovereign nature of the national government.

It does seem, then, that the TPPA would allow foreign-owned companies, operating in Australia, to challenge any local laws and regulations that they found hostile to their commercial interests, and seek international arbitration.

However, that may be light at the end of the tunnel. 

It is a presidential election year in the US.  Just as the Australia-US Free Trade Agreement was a political necessity for the Howard government in the run-up to the 2004 election, President Obama has invested lot of political capital in the TPPA.

Only the question remains: will our negotiators and politicians have the stomach to use the presidential elections as a fulcrum to move the TPPA world in our favour?

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.