TPP trade negotiations extend

Negotiations over the Trans-Pacific Partnership (TPP) trade agreement have stalled, with a Thursday night press conference cancelled as talks between the 12 nations involved extend yet again.

With several final differences still not resolved, a US Trade Representative spokesperson said on Thursday that "negotiations will continue tomorrow".

Agreement on the TPP, which is aimed at regulating trade between Australia, the United States, New Zealand, Canada, Singapore, Vietnam, Malaysia, Japan, Mexico, Peru, Brunei, and Chile, has been stalling over digital rights for several years.

Australia, meanwhile, has continued to pass digital copyright protection legal framework that could contravene the TPP should it ever be agreed to by all countries involved.

In November 2013, a leaked TPP draft revealed that a three-strikes piracy policy would not be included in the trade agreement. In spite of this, internet service providers (ISPs) and rights holders were ordered to collaborate on designing a three-strikes code for Australians who are caught downloading copyrighted material, which has since been released in the form of a draft code [PDF]

http://www.commsalliance.com.au/__data/assets/pdf_file/0005/47570/DR-C653-2015.pdfThe code was commissioned by Attorney-General George Brandis and Communications Minister cum Prime Minister Malcolm Turnbull late last year.

The regime was originally set to be implemented from September 1, but had to be pushed back due to stalling negotiations over the costs imposed by instituting the scheme, and whether the 70 ISPs involved will receive any compensation for being required to enforce copyright on behalf of rights holders.

A leak in October last year revealed that the TPP negotiators had decided ISPs should not have to bear large costs arising out of obligations to prevent the copyright infringement of users, however.

In an effort to determine the costs likely to be shouldered by ISPs in sending out infringement notices to customers, the Communications Alliance last month revealed that ISPs and rights holders had together commissioned an "independent expert".

The code's final form will likely be affected by the recent judicial decision in the Australian Federal Court; in August, Justice Perram ruled that Dallas Buyers Club's draft letters to send to alleged infringers had overreached in its claims for damages, and would need to be rewritten.

The Australian government has been fixated on policing piracy, also passing a law to allow rights holders to obtain a court order blocking foreign websites that contain copyright-infringing material or facilitate user access to copyright-infringing material.

The government did not order a cost-benefit analysis or detail who would bear the costs of implementing the scheme prior to passing this law, but it is projected to cost ISPs more than AU$130,000 per year to implement -- again contravening the leaked TPP draft.

The Attorney-General's Department in August commissioned a cost-benefit analysis into the recommendation by the Australian Law Reform Commission (ALRC) to implement a fair use provision in the amendments that the government is proposing to make to the Copyright Act, in order to adapt to the digital world.

The economic analysis will examine the cost effects that fair use would impose on copyright holders and with copyright user groups, but not on ISPs.

The Australian Productivity Commission in June also expressed reservations about how tighter international intellectual property and trade regulations could restrict bypasses to technological protection measures, having the effect of encouraging anti-competitive behaviour.

The Trade and Assistance Review 2013-14 report [PDF], which examined recent international trade policy developments and their effect on Australian regulations, flagged how the TPP in particular could further increase stringent intellectual property rights protections once it is signed off.

"The history of IP arrangements being addressed in preferential trade deals is not good," the commission said.

"Indeed, to the extent that the return to IP holders awarded by more stringent IP laws outweighed the benefits to the broader economy, the provision would also impose a net cost on both partners, lowering trading and growth potential across the bloc."

New Zealand's IT industry also recently expressed concerns that the NZ government would acquiesce to reintroducing software patent protections under regulations potentially to be imposed by the TPP.

"We're an export-driven sector, so we love free trade," Ian Taylor, president of IITP and CEO of Dunedin tech firm Animation Research, said in a letter to Trade Minister Tim Groser.

"However, this can't come at the cost of the future of the technology industry, and that's what it will be if New Zealand's current law banning software patents is traded away in the TPP."

Another TPP issue that remains unsettled is the US continuing to push lengthier patent protections for biological drugs, which are made using living organisms. This is being resisted by several of the Pacific rim countries involved.

Whether the US will further open up its market to foreign auto parts, in particular those manufactured by Japanese car makers, and whether Canada is willing to open its own market to dairy products including cheese from Australia and New Zealand, are also under contention.

Two months ago, negotiations stalled to the point where a meeting of the ministers in Hawaii failed to reach a deal. There are concerns that in the absence of TPP negotiators agreeing on the remaining points, China's own Asian trade agreement will become concrete.

Since initiating TPP talks in 2008, the United States has been hoping to lock in rules on free trade and intellectual property protection to which trade rival China would eventually have to heed. Should the TPP fail and China's trade agreement succeed, the reverse could become true.

With AAP