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Australian intellectual property laws won't be changed for TPP: Government

No changes will be made to Australia's intellectual property laws, and the US government has not raised any concerns about ISP liability for copyright infringement in Australia, the government has said.
Written by Corinne Reichert, Contributor

Despite Australia's laws on intellectual property being at odds with the Trans-Pacific Partnership (TPP) in terms of safe harbour provisions, the government's chief negotiator has said that no policy will be changed, and that the United States government did not raise any final concerns on the treatment of ISP liability for copyright infringement within Australia.

The government's final public hearing on the TPP, which took place on Monday morning in Canberra, touched only briefly on the topic of copyright and whether it requires changes to Australian legislation.

"We deem that our policy settings on intellectual property are within -- we negotiated these to be within the standard of the TPP," Elizabeth Ward, the Australian government's chief negotiator for the TPP, said during the hearing.

"We will not be changing any of our legislation as a result, and at least to my knowledge we haven't received any news from the United States with regard to ISP liability."

In relation to concerns about differences between intellectual property law and policy, Assistant Director of the International Intellectual Property Section in the Department of Foreign Affairs and Trade Ben Cas said it was not raised in the US government's final report.

"In terms of whether the US has raised concerns on this issue previously, each year the US produces what it calls a special '301 Report', and that essentially looks at other countries' intellectual [property] settings to determine whether they have any concerns, whether the business community has any concerns," Cas said.

"Now, in previous submissions, that particular issue has been raised, and there are some stakeholders [who] see a potential issue, others say there is not an issue at all, but certainly in the final reports that have been produced by the US government, that issue has not been raised as a concern."

Cas added that any concerns that were raised in the past were in relation to the Australia-US Free Trade Agreement, not the TPP.

Acting Assistant Secretary for Content and Copyright in the Department of Communications Kirsti Haipola confirmed that the US government did not include concerns about Australia's implementation of safe harbour provisions in its final report on the TPP.

"The first part of that 301 approach is that stakeholders raise questions or make comments about particular policy areas, and there were some stakeholder concerns raised about safe harbour," Haipola said.

"Those concerns reflect the difference of opinion amongst Australian stakeholders about safe harbour, but ... in the final [US government] report, there was no questions raised with Australia's implementation of the safe harbour provisions.

"The Department of Communications and the Arts has not received any questions from the US government about our implementation of safe harbour."

The government's claims came despite arguments from Australian Digital Alliance (ADA) and Copyright Advisory Group at the Joint Standing Committee on Treaties: Trans-Pacific Partnership Agreement hearing last month that without the more extensive safe harbour provisions under the proposed Copyright Act amendments, Australia will be in breach of its TPP obligations.

Section H of the Intellectual Property chapter of the TPP mandates that member states implement both fair use and safe harbour provisions.

"Each party shall ensure that legal remedies are available for right holders to address such copyright infringement, and shall establish or maintain appropriate safe harbours in respect of online services that are internet service providers," Article 18.82 says.

Articles 18.68, 18.69, and 18.74 also provide that criminal and civil penalties do not apply to "a non-profit library, museum, archive, educational institution, or public non-commercial broadcasting entity".

The ADA said that since Australia's current safe harbour scheme applies only to commercial ISPs, the nation's startups are at a disadvantage internationally.

"Libraries, schools, universities, and Australian startups ... all provide exactly the same services -- the services that are described by the provision -- and yet are not covered by our current safe harbour provisions," the ADA said.

"This puts our startups, in particular, at a commercial disadvantage to their international counterparts, creating a substantial disincentive for tech companies to set up hosting services and other new technology services in Australia, and raising their risk compared to international groups that are working in the same area."

The amendments proposed to the Copyright Act were designed to ensure that libraries, archives, educational facilities, cultural institutions, and the disability sector have "reasonable access" to copyrighted content, with usage of a copyright material not constituting infringement.

The proposed amendments also acceded to Article 18.81 of the TPP by pushing broader safe harbour provisions to cover online copyright access.

The technology sector would in particular have benefited from the addition of the non-commercial private use and technical use exemptions, as they would cover data caches, cloud computing, digital recording, and transferring of content.

Last week, submissions from Open Source Industry Australia and Law Council of Australia's Business Law Section Intellectual Property Committee (IPC) also argued that the international treaty should not be ratified until the problems of complexity and inconsistency are addressed in regards to intellectual property and copyright protection provisions; however, the final public hearing did not address these.

The IPC had said the complexity inherent in the TPP's intellectual property chapter raises three issues.

"A first problem with this complexity is that it is becoming increasingly difficult to ascertain exactly what Australia's international IP obligations are," the IPC's submission said.

"A second problem with detailed and complex rules is that they can tend to limit reform options.

"A third problem is that in a context where countries appear to have been concerned in negotiations to ensure they do not need to change IP law, the overall goal that would most benefit IP stakeholders (both users and owners) -- namely, consistency in at least basic IP rules -- is not being achieved. In fact, it is notable that in the case of the TPP, the IP chapter does not in fact create a 'common set of rules' for IP law."

The IPC said the IP chapter could require amendments to be made to Australian intellectual property law in order to comply with the TPP.

The US Congress is also stalling in passing the treaty, with current President Barack Obama's administration last week warning that should it fail to pass the TPP, a China-led deal could instead be brought through the Asia-Pacific region, which would put millions of jobs across the US at risk.

Singaporean Prime Minister Lee Hsien Loong similarly told the US Chamber of Commerce in August that the ratification of the TPP is "a litmus test of your credibility", adding that the nation will be better off with its "doors open" to trade.

However, both Democratic presidential nominee Hillary Clinton and Republican nominee Donald Trump have said they oppose the trade agreement, putting its ratification at risk, with critics claiming it will undercut American workers by introducing lower-wage competition.

The TPP, signed by all 12 member states in February, will regulate trade between Australia, the United States, New Zealand, Canada, Singapore, Vietnam, Malaysia, Japan, Mexico, Peru, Brunei, and Chile.

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