TPP regulations near ratification as nations sign

Under the newly signed TPP, ISPs will be forced to give up infringer details, government procurement barriers will be lowered, and cheaper global roaming rates will be encouraged.
Written by Corinne Reichert, Contributor

The Trans-Pacific Partnership (TPP) has been signed by the 12 member states in Auckland, New Zealand, on Thursday, with ratification of the treaty's text in each nation the next step in the process.

The TPP, which will regulate trade between Australia, the United States, New Zealand, Canada, Singapore, Vietnam, Malaysia, Japan, Mexico, Peru, Brunei, and Chile, reached agreement in October, with the full text published a month later.

Among other things, the TPP will force internet service providers (ISPs) to give up identification details of alleged copyright infringers so that rights holders can protect and enforce their copyright through criminal and civil means with few limitations; remove the barriers from government procurement, opening up equal market access to tech companies from each of the 12 member countries; and promote transparent and reasonable costs for international mobile roaming services.

The signing of the TPP has been welcomed by several Australian tech companies, with IBM saying the ecommerce chapter will improve the nation's standing in the global economy.

"The importance of the TPP, and particularly the support for cross-border data flows in the ecommerce chapter, cannot be overestimated," said Kerry Purcell, managing director of IBM Australia and New Zealand.

"The electronic delivery of services across borders is simply not possible without the ability to send and receive information over networks, and so the protections provided in the TPP for ecommerce will now provide enormous opportunities for Australian businesses.

"We welcome Australia's endorsement of the TPP, and believe that it will launch a new era for Australian business in the global, digital economy."

The ecommerce chapter [PDF] allows for free data flows between member states, as well as providing for non-discriminatory treatment of digital products.

The Intellectual Property chapter [PDF], meanwhile, states that that member nations must enable copyright holders to access the details of alleged copyright infringers through ISPs, albeit with a non-exhaustive list of limitations and exceptions.

"Each party shall provide procedures, whether judicial or administrative, in accordance with that party's legal system, and consistent with principles of due process and privacy, that enable a copyright owner that has made a legally sufficient claim of copyright infringement to obtain expeditiously from an internet service provider information in the provider's possession identifying the alleged infringer, in cases in which that information is sought for the purpose of protecting or enforcing that copyright," the text says.

Once the identity of the infringer is obtained and the matter brought before court, the TPP mandates that the judiciary must provide damages "adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right".

In order to calculate the monetary amount for these damages, the judicial authorities may consider "any legitimate measure of value the right holder submits", including profit loss, the market value of the goods or services, and the recommended retail price.

According to a statement from Jane van Beelen, executive director of Regulatory Affairs at Telstra, the federal government has said that no changes will need to be made to Australia's current copyright laws to account for this.

"We are encouraged by the statement from the prime minister and [Trade] Minister Robb that the TPP will not require any changes to Australia's intellectual property laws or policies," van Beelen said on Thursday afternoon.

"Intellectual property laws and policies that strike the right balance between rights holders and those looking to make use of new discoveries and innovations are a cornerstone of the digital economy."

Australia's three-strikes policy will soon be implemented for those who are caught downloading copyrighted material. The draft code [PDF] was released by ISPs and rights holders, which were asked to collaborate by Attorney-General George Brandis and Prime Minister Malcolm Turnbull in late 2014.

Under the regime, rights holders will send reports to ISPs identifying IP addresses that have allegedly infringed on copyright, with the ISPs to then match IP addresses with account holders and send the associated customers infringement notices. Customers can be warned three times over a 12-month period in escalating education notices, warning notices, and final notices, after which the ISP must make a user's details obtainable through a Federal Court order.

The process by which this occurs will likely be affected, however, by a recent decision by the Australian Federal Court that Dallas Buyers Club (DBC) would not be permitted to claim damages from the almost 5,000 people who allegedly infringed on the studio's copyright by downloading the film of the same name, purely because the company attempted to claim too much in damages.

Intel ANZ also welcomed the TPP, saying it would aid in the development of the digital economy.

"As the government moves forward on its Innovation Agenda, it is important to recognise the role that a trade agreement, with strong rules for digital products and services, plays for our leadership in the global economy," said Kate Burleigh, managing director of Intel ANZ.

"The TPP requires that parties have strong intellectual property laws, that they not erect arbitrary regulatory barriers on imports and investment, and that they allow data to flow freely with adequate privacy laws. Australian negotiators are to be commended for opening these markets to our IT products and services, which benefits small and large businesses alike, as well as consumers."

Under the Government Procurement chapter [PDF], member states must treat vendors from each other's countries on equal footing with domestic suppliers in awarding government contracts.

Australian Minister for Trade and Investment Andrew Robb announced last June that Australia would also be acceding to the revised, modernised WTO GPA that allows for timely and efficient e-procurement applications, submitting its offer to the WTO Committee on Government Procurement on September 16.

The WTO GPA covers 45 member states: Australia, the United States, New Zealand, Canada, the European Union, South Korea, Japan, Hong Kong, Taiwan, Singapore, Switzerland, Norway, Iceland, Liechtenstein, Aruba, and Armenia.

The government procurement market of these parties was estimated to be worth $1.7 trillion in total, with member parties required to treat the applications by other members' suppliers on equal footing with domestic suppliers.

Trade and commerce giant China has yet to accede to the GPA, but is currently involved in negotiations on the matter. Its government procurement market is worth $1.5 trillion alone, and would provide foreign companies with non-discriminatory access to its market for the first time should it become a party to the GPA.

The Telecommunications chapter [PDF] of the TPP, meanwhile, encourages the 12 member states to promote more transparent and reasonable costs for international mobile roaming services in order to support the growth of trade and improve consumer interests, but fell short of explicitly requiring regulation.

The wording is fairly soft, with the TPP simply stating that members "may choose to adopt or maintain measures affecting rates for wholesale international roaming services with a view to ensuring that those rates are reasonable".

"Nothing in this Article shall require a party to regulate rates or conditions for international mobile roaming services," the text states. Rather, parties must simply "endeavour to cooperate on promoting transparent and reasonable rates".

If parties deem it "appropriate", they may also work alongside other member states to implement mechanisms for ensuring roaming rates are reasonable.

A limited number of Pacific Rim telcos and other providers have previously worked to improve global roaming costs, with Vodafone Australia offering customers on its Red plans international roaming capped at AU$5 per day and earlier this week dropping its roaming fees for Australians visiting New Zealand.

The TPP has yet to be ratified in Australia.

Editorial standards