Looking back on the fifteenth round of TPP negotiations in Auckland

Safely back in Canberra after weathering tornadoes and tremors during the fifteenth round of Trans-Pacific Partnership Agreement negotiations in Auckland, it's worth reflecting back on the last ten days, focusing on the IP chapter of the agreement.

The fifteenth round of TPP negotiations got off to a bumpy start, with civil society groups and international experts realising on arrival in Auckland they wouldn't be able to access the TPP venue at all until stakeholder day, Friday 7 December. At previous rounds, stakeholders could interact with negotiators in hallways during the negotiations and at official tabling events, and in early stages were even able to engage with negotiators at official receptions hosted by the negotiating countries. The lack of access to the negotiating venue itself in Auckland did little to alleviate ongoing concerns regarding the lack of transparency, and shutting out of civil society in favour of business interests, that have dogged the TPP since its inception.

In Auckland, Canada and Mexico joined TPP negotiations for the first time since being formally invited to participate in June this year. Canada was put on the spot during the formal stakeholder briefing on Friday 7 December when asked about potential changes to their domestic copyright framework so soon after implementing Bill C-11, their Copyright Modernisation Act. Steve Anderson, Executive Director of Canadian digital advocacy organisation, Open Media, noted that the Copyright Modernisation Act was implemented after 10 years of domestic consultation with Canadian stakeholders, and was considered by many to have achieved a satisfactory 'balance' between the interests of creators, consumers and other stakeholders. He then asked whether Canada would amend their domestic copyright legislation further through the TPP, without the same democratic input from stakeholders, to which Canada had no comment. (It's worth noting this doesn't necessarily mean Canada is considering copyright provisions in the TPP that would affect their domestic law, but rather just didn't want to lock themselves into one negotiating position at their first TPP appearance). Still, you'd hope not.

From the official stakeholder briefing and questions posed by stakeholders in Auckland, it's clear the intellectual property chapter of the TPP is far from being concluded. Patents haven't been discussed since the March 2013 round in Melbourne, with negotiating countries still waiting for the US to propose new text following backlash against their highly controversial "TEAM" proposal, which would have an adverse impact on generic pharmaceutical schemes. The US hasn't made any commitment as to when (or possibly, even if they ever will) propose new text, and it's likely patents won't come up again until at least March 2013.

On the copyright front, things aren't much further along the way to being resolved. The diversity of domestic IP regimes around the table at the TPP would likely make it difficult to agree on appropriate standards of copyright enforcement, provisions for ISP liability and copyright term extensions. Australia, who has already adopted very high, restrictive standards for IP enforcement and protection following ratification of the Australia US Free Trade Agreement (AUSFTA) in 2006, is understood to be unwilling to agree to provisions that would mean changes to domestic law - particularly in light of the current Australian Law Reform Commission (ALRC) Inquiry into Copyright and the Digital Economy. This year, the US proposed exceptions and limitations text for the TPP implementing the Berne Convention 'three step test', which may, dependent on its wording and interaction with other copyright treaties, reduce the scope of exceptions countries like Australia are able to introduce domestically. The US has also proposed text that goes beyond existing Australian law, introducing a 95 year copyright term duration for film and music recordings, entrenched criminal liability provisions and an exhaustive TPMs regime.

The impact of a restrictive TPMs regime on access to information was articulated clearly during the negotiations by the Royal New Zealand Foundation of the Blind, who provided negotiators and stakeholders with a tour of their accessible format facilities. RNZFB described the existing copyright framework in NZ that enabled them to make accessible format copies,  and noted the thicket of issues TPMs attached to e-books and other digital content present for their visually impaired users. The TPP could potentially make it illegal for an institution assisting the visually impaired like RNZFB, to circumvent a TPM in the process of providing accessible format copies. (As a point of comparison, it's currently illegal in Australia for a visually impaired person to circumvent a TPM attached to content, to change it into a format they can read, even where they've purchased it lawfully!).

Throughout the negotiations, civil society groups and copyright academics strove to articulate some of the perhaps unintended consequences of overly restrictive copyright provisions in the TPP. At stakeholder presentations on Friday 7 December, a number of organisations including Knowledge Ecology International (KEI), Electronic Frontiers Foundation (EFF), Internet NZ, Derechos Digitales, Open Media and the ADA canvassed issues including ISP liability, criminal enforcement, copyright term extensions, the need to safeguard flexible exceptions and consumer responses to provisions in the TPP. On Saturday 8 December, the Fair Deal coalition organised a lunch for IP negotiators looking at copyright exceptions, uses of content in the digital environment, and the three step test in the TPP, featuring talks from respected academic Professor Suzy Frankel and a range of library, internet and consumer associations. The ADA's engagement at TPP negotiations in Auckland was capped off with an engaging art, music and copyright information event hosted by Internet NZ and the Fair Deal coalition on Saturday night 8 December in central Auckland.

The fifteenth round of TPP negotiations is the last for 2012, with talks slated to kick off again in March next year. Negotiating countries aim to have the agreement concluded by the APEC summit in October 2013, but in the IP chapter at least there's still a number of controversial issues to be resolved. Concerns are increasing that big IP issues will be the subject of 'horse trading' at the political level next year in October, whether they're in a negotiating country's domestic interests or not. This could be potentially to ward off bigger concerns like the inclusion of investor-state provisions, or to guarantee dairy or beef market access.

It's the potential for IP policy 'trading' that we should be concerned about. Intellectual property laws are an area of domestic policy, not trade policy, and impact on activities and services being undertaken behind country borders - like education, access for the visually impaired, the provision of internet services, digital innovation, access to information in libraries and archives, and consumer rights. Some copyright provisions included in the TPP are in effect barriers to trade, like parallel importation restrictions. The vulnerability of intellectual property policy to political trade off in negotiations like the TPP could have long term impacts on the ways in which countries are able to embrace the digital economy, and provide essential, affordable access to medicines and information to their citizens. Countries' flexibility to craft IP policy in their own national interests, whether they be net importers or exporters of IP, must be safeguarded in the TPP.

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