Christmas has come early this year for big corporations. Wikileaks has revealed that the Trans-Pacific Partnership contains a swag of corporate gifts and baubles.
The leaked intellectual property chapter of the TPP looks like it has been dictated by the United States Chamber of Commerce. Among other things, the agreement seeks to provide for longer and stronger copyright protection for transnational corporations.
In the light of day, the TPP appears to be a monster. The Intellectual Property chapter is long, complex, prescriptive, bellicose and diabolical. What's missing, as the Electronic Frontier Foundation observed, is any recognition of the public interests to be served by copyright law:
"The leaked text, from August 2013, confirms long-standing suspicions about the harm the agreement could do to users’ rights and a free and open Internet."
Instead of promoting the progress of science and the useful arts, the TPP transforms intellectual property into a means to protect and secure the investment of transnational corporations. Professor Michael Geist of the University of Ottawa said that there was a debate over the philosophical goals of intellectual property:
"[Other nations have argued for] balance, promotion of the public domain, protection of public health, and measures to ensure that IP rights themselves do not become barriers to trade. The opposition to these objective[s]by the US and Japan (Australia has not taken a position) speaks volumes about their goals for the TPP."
It is particularly disappointing that Australia has been such a passive partner to the United States in the Pacific Rim negotiations, showing little inclination to stand up for the public interest.
The TPP will impoverish the number and variety of works in the public domain with outrageous demands for copyright. The United States, Australia, Peru, Singapore and Chile have proposed a term of life plus 70 years for natural persons. Mexico wants copyright protection for life plus 100 years. New Zealand, Canada and other countries who follow the Berne Convention norm. particularly stand to suffer, given they only have a copyright term of life plus 50 years.
For corporate owned works, the United States has proposed 95 years of protection, while Australia, Peru, Singapore and Chile are pushing for 70. The United States' proposals in respect of copyright term extension in the Trans-Pacific Partnership would be a form of corporate welfare.
Such windfalls would be money for jam. A copyright term extension throughout the Pacific Rim would have an adverse impact upon cultural heritage, innovation, competition, and freedom of speech.
The TPP will also undermine domestic Australian policy initiatives. It will lock nation states into a defective and anachronistic regime for technological protection measures. As Timothy Lee said:
"The treaty includes a long section, proposed by the United States, requiring the creation of legal penalties for circumventing copy-protection schemes such as those that prevent copying of DVDs and Kindle books."
Economist Peter Martin lamented that the Trans-Pacific Partnership undermined the Australian inquiry into IT Pricing. "Australia backs the US at every turn against its own consumers," he wrote. Greens Senator Scott Ludlam concurred. "The current Trans-Pacific Partnership text also entrenches the disadvantages Australians experience in being ripped off with unfair IT pricing," he said.
The TPP will seemingly be beneficial to some of the companies most criticised in the IT Pricing inquiry: Adobe, Microsoft, and Apple. It also limits the policy space for governments to craft copyright exceptions. This is disturbing, especially given that the Australian Law Reform Commission is considering whether Australia should adopt a defence for fair use. James Love of Knowledge Ecology International observed:
"One set of technically complex but profoundly important provisions are those that define the overall space that governments have to create exceptions to exclusive rights … In its current form, the TPP space for exceptions is less robust than the space provided in the 2012 WIPO Beijing treaty or the 2013 WIPO Marrakesh treaty, and far worse than the TRIPS Agreement."
Maira Sutton and Patrick Higgins of the Electronic Frontier Foundation said that "Given the important role that flexibility in copyright has played in enabling innovation and free speech, it’s a terrible idea to restrict that flexibility in a trade agreement." Only Vietnam sought to put forward positive positions in respect of copyright exceptions in the agreement, noted Sean Rintel of Electronic Frontiers Australia.
Australia stands to be left in a woeful position. We will be burdened with heavy commitments in respect of copyright protection, without the flexibility of the United States regime, with its defence of fair use and first amendment protection for freedom of speech.
The TPP is like the notorious Stop Online Piracy Act (SOPA) or Anti-Counterfeiting Trade Agreement (ACTA) on steroids. It seeks to increase civil remedies, criminal penalties, and border measures. As Senator Ludlam said:
"The TPPA text still forces internet providers to police Australian internet users and enables the US to place us under surveillance, justified as a US-led crackdown on internet piracy … It's clear this secret deal, driven by foreign interests to benefit some of the largest multinationals, will still censor internet content, impose harsh criminal penalties for non-commercial copyright infringements, and force Australian internet service providers to police users and hand information over to law enforcement."
The investment chapter may frustrate any efforts by parliaments in the Pacific Rim to engage in progressive reform in respect of intellectual property. An investor-state dispute resolution mechanism could be deployed by foreign investors to challenge intellectual property reforms.
The tobacco industry has already used an investor clause to question Australia’s plain packaging regime. Eli Lilly has challenged Canada’s patent laws under an investment clause in the North American Free Trade Agreement. Copyright reforms could similarly be challenged by copyright industries under an investment clause in the Trans-Pacific Partnership.
The TPP will steamroll domestic laws and regulations. Politicians around the Pacific Rim have become increasingly concerned about how it overrides national sovereignty, democracy, and good governance. In the United States, Democrats and Republicans alike have rebelled against Obama’s demands for the TPP to include "fast-track" authority provisions to override the US Congress' authority on trade matters. Representative Mark Pocan and fellow Democrats observed: "Twentieth Century ‘Fast Track’ is simply not appropriate for 21st Century agreements and must be replaced." The members insisted that:
"A new trade agreement negotiation and approval process that restores a robust role for Congress is essential to achieving U.S. trade agreements that can secure prosperity for the greatest number of Americans, while preserving the vital tenets of American democracy in the era of globalization."
The Australian Greens have demanded that the Coalition reveal the full text of the Trans-Pacific Partnership to the Australian Parliament. Senator Whish-Wilson has maintained that "Tony Abbott must end the secrecy and hidden agendas that have defined his Government." Brendan Molloy of the Pirate Party of Australia warned that "This corporate wishlist masquerading as a trade agreement is bad for access to knowledge, access to medicine, and access to innovation." In New Zealand, Gareth Evans MP has observed that the TPP will not provide a fair deal for New Zealand citizens and consumers.
Now that Wikileaks has published the intellectual property chapter, the full text and the chapters and the negotiating texts of the TPP should also be fully disclosed. Given the extent of the corporate capture of the negotiating process, the TPP cannot and should not be fast-tracked.
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