The TPPA seeks to liberalise trade between the Asia Pacific nations, but the US also wants to use it as a mechanism to increase standards of copyright protection and enforcement. As the world’s largest exporter of copyright content, the US stands to gain from tougher standards. However, as the other participants are net importers, by raising standards they will effectively be paying to confer a benefit on the US, with little compensation in return.

The US wants to include the pointy end of the stick from its domestic laws in the TPPA — all protection and enforcement with no balance. The US tried to have these laws included in the recently finalised Anti-Counterfeiting Trade Agreement (ACTA). Pressure from the EU, which did not want to implement US laws, resulted in ACTA being significantly watered down. The US has put these laws back on the table for the TPPA negotiations, where the moderating presence of the EU will notably absent.

The closed negotiation of extensions of copyright protection in the TPPA by-passes the traditionally consultative process of domestic copyright reform in many countries, such as Australia. The US also wants to extend the scope of copyright protection in the TPPA, whereas ACTA was notionally a treaty about only increasing the enforcement of existing rights. Extensions of copyright are not appropriate for negotiation in treaties because copyright is an extremely complex area to regulate and requires consultation to ensure a fine balance is struck between copyright holders and copyright users.

Copyright law must balance the interests of authors and the need for reasonable incentives for creativity on the one hand, and the wider public interest in access to knowledge for the advancement of learning, innovation and research on the other. The central philosophy underpinning copyright law is to promote creation by providing authors with limited rights over their work, so there is a sufficient incentive to ensure continued innovation. The ‘high objective’ of copyright law is to ensure that its overall impact on creators and those who seek to use their works is ‘balanced’ by ensuring that users have access to copyrighted knowledge on reasonable terms. Copyright is about the end — creativity, not about the means — protection.

The US proposal for the TPPA IP chapter has been leaked. While what has been leaked is not the negotiating text, what the US wants threatens the balance of copyright necessary to foster innovation and creativity in Asia Pacific nations:

• Creation of an ‘importation right’ preventing the parallel importation of books, music and movies, that will increase costs and potentially jeopardize the proposed World Blind Union Treaty.
• Mandating protection of geographical indications with an open ended extension of trademark laws to the detriment of local producers.
• Extending the term of copyright protection to 70 years after death of the author, or if the term is determined by publication, 95 years after first publication, or if not published 25 years after creation, 120 years from creation. There is little economic rationale in increasing the copyright term from 50 to 70 years, and no impact on the incentive for creativity if it is applied to works already in existence.
• Enhancing the ban on circumventing technological protection measures preventing the legitimate uses of works by making it harder for people to legally break digital locks.
• Statutory damages for copyright, trademark and patent infringement that are: penal, disproportionate to actual losses, unjust and create a private windfall that encourages litigation.
• Criminalising small scale or personal infringement and involving the state in civil affairs.
• Allowing the seizure of small scale suspected infringing goods, particularly by customs officers at airports.
• A mandatory anti-camcording provision making the mere recording of a movie a criminal offence with no requirement for financial gain, no threshold for distribution and no defence for accidental recording.
• High obligations to qualify for safe harbour limitations to liability, which have an overall impact that lacks due process in administration and overly favours copyright holders.

The Australian Productivity Commission commented in a recent report that extending IP protection and enforcement in trade agreements does not benefit countries that are net IP importers — which is every country negotiating the TPPA other than the US. The Commission found that when net importers extend IP, it imposes ‘a net cost’ on their economies. Similarly, when a net importer forces a net importing trading partner to extend IP, the trading partner will ask for a concession in return because of the cost to its economy. However, the benefit from the trading partner extending its IP will not flow to the country giving the concession — but rather to other countries that are net exporters — that is, the US. The Commission concluded that Australia should not ‘carry the water for’ the US by giving concessions to other countries to get them to extend IP (pp 258-264).

Procedurally, the confidential negotiation of ACTA was flawed. The early stages excluded public interest groups, while leaks raised genuine concerns because they revealed ACTA was very broad in scope with substantial and controversial articles concerning copyright and the internet. The TPPA negotiations appear to be following the same pattern — a lack of transparency plagued by concerning leaks.

A robust and open debate on the TPPA is needed. Negotiators should release an official version of the draft text, or a framework of the issues, as soon as reasonably possible, to allow for meaningful discussions at a time when they can still influence the outcome. This is necessary to ensure that each country is able to balance copyright law in its best interests.

What these Asia Pacific nations need most from their copyright laws is not to import the harshest elements of the US regime, but rather to improve how their copyright laws function. They need to increase flexibility with exceptions that allow transformative uses and common internet activities and can keep pace with technological advancements. Flexible exceptions allow entrepreneurs and businesses in the innovative technology sector to participate in the digital economy with legal certainty and have significant cultural and artistic value by permitting, among other things, the artistic re-use of material in accordance with the established cultures of mashups and remixes. What these countries do not need, is to adopt the enforcement and protection aspects of US law while getting none of its flexible benefits.

Matthew Dawes is the executive director of the Australian Digital Alliance.