Howard's rose-coloured trade glasses ignore copyright lock-in

Last week, former Australian Prime Minister John Howard and US trade ambassador Robert Zoellick had a reunion tour to mark the 10th anniversary of the free trade agreement signed between the United States and Australia in 2005.

"If you look at the outcomes of the trade agreement signed in 2005 between Australia and the United States, the outcome has been very good," Howard said at an American Chamber of Commerce event in Sydney last week.

"There has been more than a doubling of trade; there has been, I think, a very spectacular dividend from the access Australian firms have to the procurement opportunities with the United States government and the 31 states that signed up to the free trade agreement.

"As I look back over that 10-year period, I certainly think we made the right call."

The tour coincided with Australia, the United States, and a number of other Pacific nations getting closer to finalising negotiations over the Trans-Pacific Partnership (TPP). Howard said that the previous agreement was the template for the TPP -- a document that he himself has not seen.

"In so many ways, the free trade agreement between Australia and the United States is something of a template for the Trans-Pacific agreement," Howard said.

"That is an agreement that will bring together developed and developing economies, and it will embrace a very high percentage of world trade."

There has been a lot of criticism of the TPP in the years it has taken the 12 participating nations to negotiate the agreement, mostly around the secrecy of the negotiations. Leaks of the intellectual property chapter reveal the US to be pushing to extend copyright law in each nation seeking to be a party to the agreement.

This would include extending copyright terms, enforcing technical protection measures such as geoblocking, making it easier for companies to be held liable for the infringement of their users, and making it harder for countries to implement fair use rules around the use of copyrighted works.

The latest leak of the IP chapter this month has not yet been published online, but Electronic Frontiers Foundation was briefed on its contents and found the most drastic change from earlier leaks was around forcing party nations to adopt a safe harbour scheme that would require companies to issue notices and enforce the takedown of copyright material.

Trade officials have spent the past few months hosing down speculation that the TPP would require Australia to make drastic changes to copyright law, stating that what Australia is negotiating is consistent with current law.

But that's only because Australia signed away most of what the US wants in the 2005 trade agreement. Technological protection measures, an increase of copyright life to 70+ years, and restrictive safe harbour rules -- that only protect ISPs in some instances, and do not protect cloud providers or other online services -- were baked into the 2006 amendment to the Copyright Act passed by the Howard government in order to comply with the US trade agreement.

At the time, Zoellnick even went as far as to explain to the Howard government how to properly draft the legislation in order to comply with what the US wanted (PDF) from the agreement.

While the fact that Australian law does not need to change in order to comply with the TPP in the area of IP might offer some comfort, it is, as Howard said last week, important to assess the agreement in the local political context.

After passing new laws allowing rights holders to obtain court orders to block copyright-infringing sites in just three months, Attorney-General George Brandis has indicated that he is still keen on a root and branch review of the Copyright Act.

The difficulty is that if Australia has freshly ratified the TPP by that point, any potential amendments -- such as the highly sought fair use provision -- could be stifled by the new trade agreement.

But criticism of the TPP, and the US trade agreement before it, has been shrugged off by Zoellnick and Howard. The former prime minister even went as far as to say -- while implementing laws that would ultimately make it harder for Australians to access media content in other parts of the world by circumventing geoblocks -- that campaigns against the media aspects of the former trade agreement were misleading.

"How can anyone have anything other than a global approach to the media now?" Howard asked.

Howard said he was for "the maximum level of transparency" around the TPP, but Zoellnick said that complaining about secrecy around the TPP is being used "to attack free trade.".

"Having worked on free trade for 25 years, I'm always impressed with the creativity of the opponents of free trade. They come up with another BS reason for why to be against trade."

The TPP agreement could be finalised by the end of this month.