Overnight a ray of light broke across the secretive Trans-Pacific Partnership Agreement (TPP) with the release of the negotiating text for the highly contentious Intellectual Property Chapter.  The leak confirms that worrying provisions that would negatively impact on access to knowledge, freedom of expression and public health are still on the table. 

The document, dating from May this year, shows considerable advancement from the last version seen.  Brackets have been removed and text consolidated and many contentious areas are approaching resolution, presumably even further advanced by now.  This would support Trade Minister Andrew Robb’s judgement that the agreement was substantially advanced, with just the hardest 10% remaining.

Now is the time that it is essential that Australia stays firm, and pushes for an agreement that supports the public interest. 

This includes pushing back against the USA’s march to criminalise copyright infringement.  Criminalisation of copyright infringement impacts disproportionately on Australia.  The US has long enjoyed more flexibility and adaptability wth its ‘fair use’ doctrine protecting many non-financially harmful, trivial or socially useful actions over there.  Our citizens have no such flexibility.

This might explain why the US is so unconcerned about pushing increased criminalisation.  Kids taking video selfies for private sharing in a movie theatre might be fair use in the USA, the TPP is pushing for it to be a criminal offence in Australia.  Similarly, large scale public-good projects such as the Hathi-Trust book digitisation project, or common commercial activities such as running a search engine are fair use in the USA, but could potentially be commercial scale criminal conduct in Australia  where we lack adequate exceptions to copyright infringement. 

Another area that remains of large concern are the provisions around ISP liability, which remains one of the most contentiously bracketed areas in the agreement.  Considering the high level of public engagement surrounding the recent domestic proposals, it would be unhelpful if the TPP sent us back to the drawing board.  And reemphasises the point that trade agreements are not the appropriate place to decide on the detail of domestic implementation. 

Thankfully some of the worst proposals, for example the complete ban on parallel imports or some of the worst TPM exception restrictions, seem to have been removed.  And there have been positive steps to insert some balancing provisions recognising the public interest and an excellent push from Australia to recognise the interests not just of the blind and visually impaired but also of the perceptually impaired.  Balancing provisions such as these are not mere window dressing, they can make a huge positive difference in interpretation and implementation.  Which in a treaty that seeking to lock in rigid regulation in an area that is rapidly evolving and developing, is essential. 

Covering 40% of the world's GDP, the TPP is a huge trade deal, and will set global norms. We learnt our lesson after AUSFTA: rigid, detailed and enforcement-based IP chapters are not in the national interest.  It is essential we reject the most draconian proposals on the table and support other countries who are seeking to implement flexible and positive langaue.  With the digital, cultural and innovative industries set to drive much of our future economic prosperity, we need our international agreements to support our national interest.