[A2k] Crikey on the TPP negotiation

Jamie Love james.love at keionline.org
Wed Mar 16 03:31:08 PDT 2011


Monday, 14 March 2011	 / One comment
US renews secret push to impose its failed copyright regime
by Bernard Keane

The federal government is involved in secret trade negotiations that
would restore many of the draconian copyright provisions the United
States was prevented from imposing in the Anti-Counterfeiting Trade
Agreement just a few months ago.

Yesterday a secret draft of the intellectual property chapter of the
“Trans-Pacific Partnership Agreement” currently being negotiated in
Santiago was leaked to the Knowledge Ecology International site,
revealing the full extent to which the US wants to re-fight the battle
lost in ACTA.

The draft is available to governments and a variety of industry
“stakeholders” (KEI revealed the industry agenda for the TPP in
December) but not to the public. The TPP is a free trade agreement
being negotiated between the US, Australia, New Zealand, Chile,
Singapore, Brunei, Vietnam, Malaysia and Peru.

Last year a US push to impose draconian restrictions on ISPs,
consumers and developing countries at the behest of the copyright and
pharmaceuticals industries was thwarted when the final text of the
ACTA treaty dropped a number of controversial requirements. The failed
ACTA measures the US is trying to revive via the TPP include:

A requirement (s.14) that signatories legislate to establish a power
to arbitrarily search for “counterfeit goods” and “pirated copyright
material” in imports and exports, which was only allowed for and not
mandated in ACTA. However, signatories will still be allowed — if they
wish — to exclude personal luggage (eg: laptops) from searches, as per

Pre-established damages. The US strongly pushed for “pre-established
damages” being available to rights holders in ACTA, because they’re
inevitably far higher than any actual damages that rights holders such
as studios or music companies can demonstrate they have incurred. This
was defeated in the final ACTA draft, but the TPP (s.12) requires that
signatories make available pre-established damages for rights holders.
The TPP draft would also establish that damages be based on “suggested
retail prices” rather than actual costs, in effect allowing rights
holders a role in determining the level of damages.

Copyright violations carried out even for no commercial gain would be
treated as criminal offences. The criminalisation of downloading
copyright material — in essence, the outsourcing of what has long been
the civil enforcement of copyright to government — is a key goal of
the copyright industry, as it will shift the cost of enforcing
copyright from the industry itself onto taxpayers. This was headed off
in ACTA with the exclusion of “rights infringements that have no
direct or indirect motivation of financial gain”. The TPP draft
requires that criminalisation extend to “significant willful copyright
or related rights infringements that have no direct or indirect
motivation of financial gain”.

Goods “suspected” of being counterfeit can now be stopped by Customs
officials, restoring a requirement lost in ACTA, but it must be based
on prima facie evidence.
The draft also seeks to extend US copyright laws internationally,
imposing the US’ Walt Disney-based 70-year copyright period, mandating
legislation that requires ISPs to cut off from the internet “repeat
infringers”, bans parallel trade of copyright goods of any kind (which
potentially may drive Australian CD prices back up to the levels seen
before the Howard government allowed parallel imports), and require
ISPs to hand over all information about its customers if they are in
any way connected to infringing activity (ie: even if you clicked on a
website containing downloads, without ever downloading anything).

As lawyer Leanne O’Donnell pointed out this morning via Twitter, the
inclusion of IP-related clauses in the TPP directly contradicts the
view of the Productivity Commission, which criticised the inclusion of
IP provisions in trade agreements in a December report:

“The Commission considers that Australia should not generally seek to
include IP provisions in further BRTAs, and that any IP provisions
that are proposed for a particular agreement should only be included
after an economic assessment of the impacts, including on consumers,
in Australia and partner countries.”

Having failed to impose these sorts of draconian and invasive measures
worldwide via the ACTA, the US is now trying to impose them on a
smaller and more pliable group, including a docile Australian
government eager to demonstrate its solidarity with the US. If it can
lock in these requirements in a small multitateral treaty like this,
it may become a template for future free trade and multilateral

And again, the US push is being conducted in secret, with only big
industry players given privileged access to the drafts for comment. At
the time of the defeat of the ACTA push, some observers predicted the
US would simply keep on pushing to impose the sorts of measures in
other fora. That prediction has turned out to be entirely correct.

James Love.  Knowledge Ecology International
http://www.keionline.org, +1.202.332.2670, US Mobile: +1.202.361.3040,
Geneva Mobile: +41.76.413.6584, efax: +1.888.245.3140.

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