Trans-Pacific Partnership Agreement Contains ACTA-Like Provisions

Stakeholders at a briefing held by the Department of Foreign Affairs and Trade (DFAT) last Friday were told that the upcoming regional agreement, Trans-Pacific Partnership Agreement (TPP), would contain some intellectual property provisions similar to the Anti-Counterfeiting Trade Agreement (ACTA).

ACTA was rejected by the European Union earlier this year, and the Joint Standing Committee on Treaties (JSCOT) has recommended against ratification until stringent criteria are met, including a cost-benefit analysis. Pirate Party Australia made multiple submissions to JSCOT regarding ACTA[1][2].

The TPP will contain an intellectual property chapter cobbled together from various other free trade agreements and treaties, including the Australia-United States Free Trade Agreement (AUSFTA), representatives of DFAT indicated when questioned. This is in direct contradiction to a 2010 recommendation by the Productivity Commission to seek to exclude intellectual property provisions from future bilateral and regional trade agreements (BRTAs), after AUSFTA introduced a net loss to the Australian economy[3].

“It is of great concern that we may see the reintroduction of ACTA-like provisions in the Trans-Pacific Partnership Agreement, which has been resoundly binned as a poorly formed agreement, starting with the EU rejecting it and continuing with JSCOT’s scathing review,” said Brendan Molloy, Secretary of Pirate Party Australia.

“As has been continually argued and pointed out in the JSCOT report[4], ACTA would result in changes to our domestic legislation, and yet when pressed on the matter in regards to TPP, the bureaucrats would have us believe they will not negotiate a document that would result in domestic legislative change. I find this hard to believe, given they have already done many times before.”

Pirate Party Australia’s representatives have learnt from DFAT that the Government has abandoned cost-benefit modeling for BRTAs, meaning that trade agreements are currently negotiated without any regard for predicted economic impacts. The stated reason for this was that modeling did not result in accurate predictions. However, the Productivity Commission noted in 2010 that there was no known economic analysis of AUSFTA prior to the finalisation of negotiations appears to exist, and the Agreement imposed a net cost on Australia and substantially altered our laws[5].

It was also stated by DFAT representatives that the Government has agreed to conduct a cost-benefit analysis of ACTA before discussing its ratification. Pirate Party Australia has not yet attempted to confirm this statement.

“The difficulty with the introduction of further IP chapters in these ‘free trade agreements’ is that it sets domestic legislation in stone and limits the potential for positive domestic legislative reform. The negotiations of TPP can — and likely will — result in any recommendations of patent and copyright reviews currently being undertaken in Australia being made unattainable,” Mr Molloy continued.

“The perfect example of this is introduction by AUSFTA of TPM legislation that has had a very negative impact on the ability for Australians to exercise their fair dealing rights under the Copyright Act 1968.”

The Pirate Party expects the Trans-Pacific Partnership Agreement to undermine discussions within the ASEAN + 6 nations regarding intellectual property, with DFAT representatives confirming that the TPP is expected to be broader than ASEAN. The Party takes this to mean that the United States, which is not involved in ASEAN + 6, is pushing for stronger intellectual property provisions than those nations in the Asia-Pacific.

Currently 11 nations are involved in the TPP negotiations, with interest expressed from Japan and Thailand. The Pirate Party issued a press release in October expressing concern when Canada and Mexico announced they would be entering negotiations[6].

Pirate Party Australia remains committed to the advocacy of copyright and patent reform, increased governmental transparency, the protection of privacy, and opposes censorship regimes.


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