The text of the Intellectual Property Rights section of the highly secretive Trans-Pacific Partnership was leaked this week by Wikileaks. We've asked experts from a number of fields to comment on what concerns them most about this wide-reaching (and largely uncontested) proposed change to the law.
Research Fellow in the Department of Computing and Information Systems, University of Melbourne. Author of Underground, with Julian Assange. Twitter: @sueletted
The TPP is effectively making secret law that will override the High Court of Australia. It is handing the keys to a foreign power – and in the here and now, that’s a substantial and imminent threat to the sovereignty of Australia and the welfare of Australian consumers.
The TPP mechanisms are too complex to outline in a short space so let’s just talk about what effects they may have.
They will turn Australian Internet Service Providers (ISPs) into copyright police. Instead of your ISPs selling you a connection service, the TPP will force them to pry into what you’re doing online. The TPP will make ISPs legally responsible if any of their hundreds of thousands of customers downloads illegal content.
The High Court of Australia ruled in the iiNet case that an ISP should not be liable for its users unlawfully downloading content. There are good reasons for this. If people plan a bank robbery over the telephone, it’s illogical that ANZ should hold Telstra responsible for the content of their telephone conversation. The TPP – effectively a law made in secret – will run roughshod over this High Court ruling, reversing it without recourse to Australian courts or parliament.
The TPP will have a chilling effect on freedom of speech, especially in the wake of Snowden’s revelations about NSA spying on average citizens.
At its heart the TPP is basically a grab for money. It will take money out of the pockets of average Australians and give it to large corporations in the US. We will effectively have to pay more on average for movies, music, games and medicines.
Never mind that we already do that anyway: as an Australian parliamentary inquiry discovered Americans pay just $1.39 for an iTunes Song compared to Australians paying $2.19. We’ll get to do it again under TPP. All of this with no parliamentary committee oversight, and no public debate (until now, of course, thanks to Wikileaks).
The Abbott Government intended to just push the TPP through without a murmur of public discussion, without even showing us the document until they had signed it. This is not transparent, not democratic — and definitely not good governance.
Information freedom activist and Councillor, Pirate Party Australia. Twitter: @piecritic
The TPP, a trade agreement negotiated in complete secrecy, has only been able to be partially scrutinised by civil society due to a very timely leak. This leak has revealed that not only were all the fears we had absolutely on the right track, some parts of the text are worse than expected.
The intellectual property chapter focuses almost exclusively on enforcement. It is a very prescriptive text, that locks us into an inflexible regime that is not considerate of the future. For instance, article QQ.G.10 reinforces one of the worst parts of our current IP regime, which consists of legal protections for technical protection measures. Why should it be illegal to jailbreak your iPhone?
Perhaps the most shocking inclusion in the TPP IP chapter is criminalisation of non-commercial copyright infringement. Article QQ.H.7.2 contains language that is supported by the United States and by Australia, that would potentially imprison people considered to have committed infringement on a "commercial scale", regardless of whether there was a financial incentive. This is a fundamentally unbalanced proposal.
The United States has proposed several provisions that are anti-innovation. One such provision is a blanket ban on the retransmission of TV signals over the Internet in Article QQ.H.12, regardless of purpose, without permission of the rights holder.
As other provisions clamp down on the utility of exceptions to copyright, the flexibility necessary to innovate in the digital environment is being strangled. The text even attempts to consider temporary copies to be copyright infringement! This is at odds with how computers or digital devices work while we undertake many of our standard day to day activities. It is absurd.
The strangest part of the text would have to be the inclusion of language regarding patenting surgical methods, that would limit the flexibility provided by the WTO. There is language that would lower global standards on medical patents and potentially extend patents beyond 20 years, all supported by the United States.
This corporate wishlist masquerading as a trade agreement negotiated in complete secrecy is bad for access to knowledge, access to medicine, and access to innovation. We would be insane to allow this agreement to be put into force.
Researcher at the University of Sydney, and the author of Contract and Contagion: From Biopolitics to Oikonomia. Twitter: @Mitropoulos_A
Intellectual property regimes have for some time been the most significant mechanism for extracting capital from the world, the mechanism by which institutions and corporations capture and ensure their ownership of labour, knowledge, invention, molecular compounds, DNA — anything that can be trademarked, patented or copyrighted.
It is not surprising that the objective over recent years has been the development of a global system of rules for the extraction of capital, and the elaboration of the means by which those rules are policed and their infringement criminalised. The stakes in the TPP are simply the norms by which circulation can occur, and whether the only movement that is possible is the circulation of commodities.
In the case of the work that takes place in the universities, the TPP will entrench the system according to which academic writing and research is paywalled by publishers, distribution platforms and corporations. The global IP enforcement rules will criminalise the distribution of an academic’s own research and writing, and provide a global set of rules for locking research to profits, corporate stature and systems of appropriation.
The issue is not some abstract or libertarian precept of freedom. By now we all know where such libertarianism aligns on issues of gender, racism and similar. It is about the complex ways in which something can be transformed into capital. It is, in other words, about power and money, and the increasing concentration of both among those who already have both in abundance.
The biggest winners in the TPP are the largest global corporations and, with the proliferation of mechanisms proposed, they intend to fully harness the infrastructures of the internet and the full force of the law in order to capture and extract even larger profits and a wider share of the world market. It seems to me that the more important contest here is not over “national sovereignty” versus “global capital” but, instead, the creation of a global, non-capitalist infrastructure of communication and movement in the midst of opposition to the TPP itself.
Independent journalist, activist and author of Profits of Doom. Twitter: @antloewenstein
The details of the TPP, released by Wikileaks and proving the transparency group remains a vital organisation doing the work journalists should be undertaking, are worrying for national sovereignty. The idea that Australia will become even more of a US client state, with the open collusion of Tony Abbott’s government, should be enough to worry all citizens. We should know how willing Australian negotiators have been to allow US demands for national laws to be abandoned in the name of protecting American corporate interests.
We could pay more for medicines, drugs, films and software because American corporations want us to. The US spying regime could be expanded to monitor newly criminalised internet piracy. The fact that multinationals such as Chevron, Halliburton, Monsanto and Walmart have seen the TPP but the public hasn’t reveals the contempt shown by our leaders. It’s ironic that Wikileaks has had to crowd-source money to release the full document that is being negotiated in secret and in our names.
In reality, the TPP is a policy designed by the US and backed by pliant nations to challenge the rise of China. Pepe Escobar in the Asia Times rightly calls the TPP:
“A major US corporate racket that will lower tariffs across the spectrum to the sole benefit of US multinationals and not small and medium-sized firms in developing countries, all this under the cover of a dodgy ‘highest free trade standard’."
If Australia had a serious and inquisitive media, the TPP would be leading the news.
Public health specialist and Conjoint Lecturer at the University of New South Wales. Twitter: @ben_hr
The draft chapter of the TPP on intellectual property rights that Wikileaks published this week has shed a lot of light on the process. It will have far-reaching implications, particularly in terms of access to pharmaceuticals and public health.
The TPP negotiations have been an opaque process to say the least. Even now that we have part of the full text I find its implications difficult to gauge. The most worrying aspects for the public are the expansion of Evergreening patents and the US proposal that the patent clock on pharmaceuticals only starts ticking when marketing approval is granted, rather than when the patent is published.
The most dystopian turn is Article QQ.E.1, which proposes patent coverage of plants and animals, including “biological processes for the production of plants and animals". This is opposed by New Zealand, Canada, Singapore, Chile and Mexico in the draft.
A bigger issue is that the TPP is creating conditions that favour the US, Australia and Japan at the expense of the other parties involved. Whatever notional value the TPP offers to the region will be dependent on not disproportionately advantaging the bigger players. That has always seemed unlikely but this leak makes it clear it will worse than expected.
Donate To New Matilda
New Matilda is a small, independent media outlet. We survive through reader contributions, and never losing a lawsuit. If you got something from this article, giving something back helps us to continue speaking truth to power. Every little bit counts.