Penalties for piracy as three strikes off the table in TPP negotiations

Three-strikes or a graduated response to online copyright infringement will no longer be a part of the Trans-Pacific Partnership agreement, but could be replaced by civil and criminal enforcement provisions.
Written by Josh Taylor, Contributor

While the controversial three-strikes provision to deter copyright infringement is off the table, ZDNet has learned that the 12 nations currently negotiating over the Trans-Pacific Partnership (TPP) agreement are still weighing up including a provision that would seek to force countries to impose civil or criminal penalties for users caught downloading copyright infringing material.

The TPP is an agreement that's currently being negotiated between Australia, the US, Canada, Japan, Mexico, Peru, Vietnam, Malaysia, Brunei, Chile, New Zealand, and Singapore, aimed at simplifying trade between the 12 nations. Negotiations have been ongoing for close to two and a half years, with the TPP agreement said to be over 1,000 pages long, including a significant chapter relating to intellectual property and copyright.

The countries involved have set what is said to be an "ambitious" target of having the negotiations resolved by the end of this year, but much work still needs to be done before the agreement can be said to be completed. Negotiators are due to meet in Salt Lake City next week to continue negotiations on the agreement.

The IP chapter is said to be the most controversial because, an initial leaked copy of the draft text suggested that Australia and other member nations would be required to implement a three-strikes style graduated response system to dealing with online copyright infringement.

The text of the agreement has still not been made public, and the negotiators, including those from Australia, have a long standing policy of not commenting on the leaked text. ZDNet has confirmed that the proposed three-strikes policy is not part of what is currently under negotiations as part of the TPP agreement, but the countries are understood to now be considering harsh civil and criminal penalties for users caught infringing on copyright.

DFAT officials told ZDNet that civil and criminal penalties were currenly up for negotiation.

"In the Intellectual Property Chapter, TPP Parties are discussing various enforcement proposals, including civil and criminal measures. Australia is seeking enforcement standards in the TPP that are consistent with our own effective and balanced enforcement regime," the officials said.

"Australia is not supporting any provisions in the TPP that would require us to introduce new civil remedies or criminal penalties for online copyright infringement."

Although Australia is not supporting the current proposal, it is in line with a report recently that new Attorney-General George Brandis is seeking to impose penalties on users caught infringing.

The government will not say whether it will be seeking to change copyright policy in Australia, stating that it will wait for the Australian Law Reform Commission's report into the Copyright Act due this month before proposing changes.

The Attorney-General's Department was reportedly seeking to restart failed roundtable discussions between ISPs, content owners, and consumer rights groups over addressing online piracy issues, but the department would not confirm the meetings were planned when asked by ZDNet.

A graduated response scheme is not one that the ISPs favour, because it places an obligation on the service provider to enforce copyright law, where many of them see it as being the responsibility of the content owners.

Data sovereignty at risk

In the e-commerce chapter of the TPP negotiations, data sovereignty is also said to be a major concern for the stakeholders, with a section outlining the free flow of data potentially jeopardising data soverignty. Negotiators are currently working to secure exceptions on public policy grounds, meaning that governments would not be required to store sensitive data such as e-health or social security information outside of the country of origin.

As a result of the IT pricing inquiry, Australian negotiators have also brought up the issue of geoblocking at the TPP negotiations. Geoblocking is currently used by multinational corporations and content providers to prevent users based in other countries from accessing that content or product at all, or at the same price as residents within the host's country.

Australian negotiators are not currently pushing for the agreement to include any removal of geoblocking, instead the negotiators say they are just seeking to raise the profile of geoblocking as a concern for Australian consumers.

Regardless of whether the 12 nations that are part of the TPP agreement finalise negotiations at the end of this year, the agreement will be signed before the public is able to see the text of the agreement.

One of the more controversial aspects of the agreement is that although the TPP agreement must go through Parliament before Australia ratifies the agreement, if the Parliament objects to a portion of the agreement, it is difficult for changes to then be made to the agreement.

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