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The Trans-Pacific Partnership: Copyright Law, the Creative Industries, and Internet Freedom. Submission to the Productivity Commission, the Joint Standing Committee on Treaties, and the Senate Foreign Affairs, Defence and Trade References Committee
(2016)
Abstract
Executive Summary
This submission provides a critical analysis of the copyright sections of Chapter 18 of the Trans-Pacific Partnership on intellectual property.
In National Interest Analysis, the Australian Government asserts that the Trans-Pacific Partnership is a merely recapitulation of existing agreements:
"The TPP Intellectual Property Chapter is consistent with Australia’s existing intellectual property regime and will not require any changes to Australia’s legislation. Minor regulatory changes relating to encoded broadcasts will be required to extend to Malaysia, Singapore, Brunei Darussalam and New Zealand the benefits in Part VAA of the Copyright Act 1968 that Australia already extends to parties to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 1961 (the Rome Convention).
The TPP does not require an increase in the term of copyright protection in Australia, nor any other changes to Australia’s copyright regime, including with respect to technological protection measures. The TPP standard with respect to ISPs is consistent with Australia’s existing ISP liability regime and will not require ISPs to monitor, report or penalise copyright infringement."
However, such an assertion is not well-founded. A close examination of the Trans-Pacific Partnership reveals that the agreement has obligations above and beyond existing agreements – such as the TRIPS Agreement 1994 and the Australia-United States Free Trade Agreement 2004.
Recommendation 1
The Trans-Pacific Partnership distorts the aims, objectives, and principles of copyright law. The agreement privileges a corporatist view of copyright law, and seeks to enhance the rights and remedies of copyright owners. The trade agreement is unbalanced. There is a failure to properly represent the traditional objectives of copyright law in promoting learning, access to knowledge, and scientific progress. Moreover, the Trans-Pacific Partnership does not promote copyright goals – such as creativity, innovation, competition, and access to goods and services.
Recommendation 2
The copyright term extension in the Trans-Pacific Partnership will have significant economic, cultural, and innovation costs for Australia and other countries in the Pacific Rim. The Productivity Commission rightly highlights public policy problems in respect of long copyright terms and orphan works. Australia needs to develop law reform solutions for such problems.
Recommendation 3
The Trans-Pacific Partnership has vague, ambiguous and complex language on copyright exceptions and limitations. While the United States enjoys a broad and flexible defence of fair use, many other Pacific Rim countries lack such expansive copyright exceptions. The Productivity Commission makes a strong case about why Australia should adopt a defence of fair use to promote innovation, competition, and consumer welfare.
Recommendation 4
The Trans-Pacific Partnership has detailed, prescriptive text on intermediary liability and copyright law. It is questionable whether this anachronistic model is appropriate and well-adapted for Australia in the digital age.
Recommendation 5
The Trans-Pacific Partnership seeks to lock in United States-style provisions in respect of technological protection measures. This is unwise – given concerns about the efficacy of the regime; the collateral impact of uber-copyright on a range of other public policy interests; and the current constitutional challenge to the technological protection measures regime in the Digital Millennium Copyright Act 1998 (US).
Recommendation 6
The Trans-Pacific Partnership also seeks to embed a United States-style regime in relation to electronic rights management information. Again, such an approach is questionable – given that such measures have proven to have little utility.
Recommendation 7
The Trans-Pacific Partnership provides for an arsenal of copyright enforcement measures – relating to civil remedies, criminal offences, border measures, government computer software, satellite piracy, and law enforcement co-operation. There has been significant about whether such measures are balanced and proportionate. Moreover, there have been larger concerns about the impact of the Trans-Pacific Partnership upon due process, privacy, civil liberties, freedom of speech, and human rights.
Recommendation 8
Other Chapters of the Trans-Pacific Partnership – dealing with Investment, and Electronic Commerce – reinforce and exacerbate a number of the problems with the Intellectual Property Chapter. Providing copyright owners with a super-remedy of Investor-State Dispute Settlement is a startling, radical new power.
Recommendation 9
Furthermore, the Trans-Pacific Partnership will result in greater fragmentation of international regulation and governance of copyright law and electronic commerce. The regional agreement will dilute the key role of international organisations such as the World Intellectual Property Organization, and the World Trade Organization. There will also be complications over the relationship between Australia’s bilateral copyright obligations, and the proposed new regional agreement. A copyright trade dispute, for instance, between Australia and the United States could be played out in state-state dispute settlement under the World Trade Organization, the Australia-United States Free Trade Agreement 2004, and the Trans-Pacific Partnership, and investor-state dispute settlement.
Keywords
- The Trans-Pacific Partnership,
- Copyright Law,
- The Creative Industries,
- Internet Freedom,
- Copyright Term,
- Fair Use,
- Fair Dealing,
- Technological Protection Measures,
- Copyright Enforcement,
- Border Measures,
- Electronic Rights Management Information,
- intermediary liability,
- safe harbours,
- Investor-State Dispute Settlement,
- Electronic Commerce
Disciplines
Publication Date
October, 2016
Citation Information
Matthew Rimmer, ‘The Trans-Pacific Partnership: Copyright Law, the Creative Industries, and Internet Freedom', Submission to the Productivity Commission, the Joint Standing Committee on Treaties, and the Senate Foreign Affairs, Trade, and References Committee, October 2016, http://www.aph.gov.au/DocumentStore.ashx?id=62e03663-4128-42fc-83e7-d5d01559a6a7&subId=459717