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Australia – The Trans-Pacific Partnership: Seeking To Overhaul Global IP Rights And Enforcement.

22 May, 2014

 

 

What You Need To Know

 

  • Despite intense media scrutiny, much of the content of the Trans-Pacific Partnership (TPP) is still a matter of speculation. 
  • Concerns regarding the content of a leaked draft IP chapter late last year put into focus the potential for Australia’s domestic laws to be amended to strengthen the protection of rights holders, and to restrict the ability of non-rights holders to effectively challenge IP rights and of consumers to access IP protected content or works. 
  • The negotiating positions of the parties appear far from resolved, and mounting opposition to the TPP brings into doubt whether the treaty will be concluded in its current form.

What You Need To Do

 

  • Keep abreast of media reporting on the TPP as more information comes to light as to the likely content and effect of the agreement. 
  • As the agreement covers a range of trade and IP topics, be aware of how various proposals may impact your business, modify your rights or restrict your ability to access IP protected content or goods. 
  • Be cautious about committing to technologies or agreements that presume the continuation of Australia’s existing IP laws until more is known about the content of the TPP and the timeline for its implementation.

 

Over the past few months, there has been a sharp increase in media coverage concerning the Trans-Pacific Partnership (TPP), a multi-lateral trade agreement being negotiated between 12 countries, including Australia. 


Advocacy groups across a range of disciplines have expressed concern regarding the secrecy surrounding the TPP negotiations. Media interest in the negotiations was piqued following the release by WikiLeaks on 13 November 2013 of the TPP’s draft IP chapter (dated 30 August 2013). 


Strengthening IP Rights, Restricting Exceptions 


The IP chapter appears to disclose a range of proposals by the United States to impose so-called “TRIPS+” standards across a range of IP laws (being standards in excess of those imposed by the Trade Related Aspects of Intellectual Property Rights agreement administered by the WTO), including the adoption of a US term of copyright protection, further restrictions on parallel importation, and criminal offenses for copyright infringement. Similarly, concerns have been raised that the US proposals for pharmaceutical patents would greatly reduce patentability standards as well as reduce the “TRIPS” flexibilities for public health and access to medicines. 


Critics of the TPP allege that the draft IP chapter would put further restrictions on “fair use” exceptions to infringement, and would place additional liability on internet intermediaries (such as Internet Service Providers or ISPs) for the potentially copyright infringing activities of individual consumers.

 

Of particular interest, given the rise of IPTV services such as Netflix and Hulu internationally (and the increasing number of Australians accessing these services via virtual private networks) is the language in the draft IP chapter requiring laws which ban the circumvention of so-called “technological protection measures” (TPMs), which act to geographically restrict access to digital content or goods (known as geo-blocking).
Recently, a Freedom of Information application to the Department of Foreign Affairs and Trade uncovered advice from the Australian Competition and Consumer Commission that opposed any escalation to TPMs, noting that:

 

“geo-blocking… prevents an Australian consumer from purchasing any item (electronic or physical) or permits the purchase only at a price determined as a result of price discrimination, based on a consumer’s Australian location. Consumers are not able to obtain goods or services at the lowest price at which those goods or services are sold. Consumers are also prevented from acquiring all the benefits’ of products offered elsewhere. Accordingly they suffer detriment.”


Additional Content 


Outside of the IP Chapter, many Australian commentators have expressed concern that the TPP may include so-called ”investor-state dispute settlement” (ISDS) provisions, opening up Australia to lawsuits regarding decisions by the government, such as the plain-packaging regulations brought in under the previous government and challenged (under similar provisions) by Phillip Morris in the High Court. However, Trade Minister Andrew Robb was quoted in September 2013 confirming that the previous government’s position (namely, opposition to the inclusion of ISDS provisions) remains unchanged.


What Comes Next? 


Despite an election commitment from the new government to fast-track completion of the TPP, it appears that Australia, as well as several other negotiating countries, remain opposed to several key proposals made by the US. Mounting opposition to the TPP in the US – including a congressional rebuke to President Obama’s proposal to fast-track ratification of the TPP – raises questions as to whether the TPP can be concluded in its current form. Previous US legislative proposals to strengthen IP laws (such as SOPA and PIPA) were defeated after an effective mobilisation online of both internet companies and activists, and it remains to be seen if a similar coalition of advocacy groups could force significant amendment to – or ultimate unravel of the plans for – the TPP in its current form.

 

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For further information, please contact:

 

Kellech Smith, Partner, Ashurst 
kellech.smith@ashurst.com

 

Kane Wishart, Ashurst 
kane.wishart@ashurst.com

 

Ashurst Intellectual Property Practice Profile in Australia

 

Homegrown Intellectual Property Law Firms in Australia

 

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