TPP looming as Abbott ticks off trade agreements

Australia this week has signed onto two new free-trade agreements, with Prime Minister Tony Abbott visiting Japan and Korea to sign the agreements over the last few days. As Abbott attempts to forge a similar agreement with Australia's largest trading partner China, Australian negotiators continue to work in the background on the Trans-Pacific Partnership (TPP) which could have much larger ramifications for Australian intellectual property laws.

The Trans-Pacific Partnertship (TPP) agreement is a 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.

The last leak from the TPP negotiations released late last year highlighted that there were significant disagreements between the US and the other countries over the large IP chapter in the agreement.

Negotiation positions for the IP chapter as of November 6 revealed that Australia had been rejecting a US term of copyright protection, parallel importation proposals, and criminal offenses for copyright infringement, but Australia was also against a non-US proposal that would limit the liability of ISPs for the copyright infringement of users on their networks.

Department of Foreign Affairs and Trade officials have repeatedly said that Australia would not sign up to provisions in the TPP that would be inconsistent with existing intellectual property laws, but in his wide-ranging speech on copyright reform in February, Attorney-General George Brandis indicated that he would be mindful of international trade agreements when deciding on changes to Australia's Copyright Act.

Negotiators will be continuing to work on the basis that the agreement should result in no changes to Australian law, and the agreement should allow a certain level of flexibility for Australia to change copyright law, but negotiations are getting to the point where it will be up to the stakeholder ministers to negotiate over politically sensitive issues in the TPP.

Brandis said he remains to be convinced that Australia needs a fair use regime for copyright, as the Australian Law Reform Commission (ALRC) has recommended, but ultimately it will be up to Andrew Robb as Trade Minister to decide whether Australia signs away the ability to implement such a scheme through the TPP.

The two ministers will no doubt be working close, but the potential desire for the Abbott government to speed up these trade negotiations and get some runs of the board could result in Australia signing onto some tight frameworks for intellectual property in order to get better deals on agriculture exports.

The intellectual property framework might not dictate what Australia must do to deter copyright infringement online, but it would likely set out expectations for Australian law. For instance, ISPs may be given limited liability over users' copyright infringement, provided certain conditions are met.

By all accounts, Australia remains opposed to a graduated response scheme being included in the TPP for warning users who infringe on copyright, but the framework for what might potentially limit the liability on ISPs may ultimately give rise to such a scheme being put in place.

In any case, Brandis has indicated that if ISPs and rights holders cannot work together to find an industry-led scheme, he is willing to legislate. Signing up to the TPP might just bring forward the deadline, if the US gets its way.

Of course, we won't know that until we get to see the full text of the agreement, which will not be released until well after the next photo opportunity for the PM or Robb to sit next to their counterparts from the other nations when they sign the TPP agreement.

As with the Japanese and Korean free-trade agreements, we won't know what is in the TPP agreement until it is submitted to the joint parliamentary committee on treaties, and as many others have pointed out, making changes at that point is extremely difficult.

ISPs that are now committing to re-entering into talks with the government and rights holders over cracking down on copyright infringement in good faith, may find that a deal binding them into becoming copyright cops may be stitched up behind their backs, and signed, sealed and delivered before they can even protest.