“The Intellectual Property chapter locks in Australia and Chile’s current standards of intellectual property protection for patents, trademarks, geographical indications and copyright, including through appropriate enforcement mechanisms”

Regulatory Impact Statement 2008

“The public domain is of crucial importance for researchers, academics, teachers, artists, authors and enterprises, which require a rich base of content for their new creations, as well as for those institutions, the function of which is to preserve or disseminate knowledge, such as universities, research centers, libraries, information services, archives and museums.”

Submission of the Government of Chile to the World Intellectual Property Organization.

“We do not want our trade representatives to negotiate on their own agreements that require changes in domestic copyright laws and then present the agreement after signature to the legislature as a fait d’accompli.”

William Patry, copyright commentator

EXECUTIVE SUMMARY

In the following submission, I make a number of arguments in respect of the Intellectual Property Chapter of the Australia-Chile Free Trade Agreement 2008:

1. The Australian Parliament should honour and implement its previous commitments to improve the process for the negotiation, evaluation, and adoption of international trade agreements relating to Intellectual Property.

2. The Australian Parliament should implement its past recommendations in relation to the substantive reform of Australia’s intellectual property laws, so as to mitigate and contain the harms caused by “TRIPs-Plus” agreements.

3. The Intellectual Property Chapter of the Australia-Chile Free Trade Agreement 2008 should not further “lock in” Australia and Chile’s current standards of intellectual property protection for patents, trademarks, geographical indications and copyright. Instead, any agreement between the two countries should seek to take full advantage of the flexibilities allowed under international intellectual property law.

4. The Intellectual Property Chapter of the Australia-Chile Free Trade Agreement 2008 should be subject to a comprehensive assessment of its economic, social, and political costs and benefits, by an independent assessor, such as the Productivity Commission.

5. The purposive statement of the Australia-Chile Free Trade Agreement 2008 is biased and skewed towards intellectual property rights-holders. It should be revised in line with the broad statement of policy objectives in the TRIPS Agreement 1994 and the World Intellectual Property Organization Internet treaties.

6. The Australia-Chile Free Trade Agreement 2008 should not further entrench TRIPS-Plus standards in respect of copyright law. The Australian and the Chilean Governments should take advantage of the full flexibilities permitted in respect of copyright law under the allowable exceptions under international intellectual property. In particular, it would be advised to adopt a flexible, open-ended defence of fair use.

7. The Australia-Chile Free Trade Agreement 2008 should not provide further reinforcement for the protection of well-known trade marks. It would be worthwhile for both the Australian and the Chilean Governments to adopt a general defence of fair use in respect of well-known and famous trade marks.

8. The Australia-Chile Free Trade Agreement 2008 requires safeguards to facilitate access to essential medicines, and preventing “evergreening” of pharmaceutical drug patents. The Australian Government (and the Chilean Government) should provide a broad defence of experimental use, and a broad defence in respect of research into pharmaceutical drugs. The Australian Government needs to implement the WTO General Council Decision 2003 to allow for the export of pharmaceutical drugs.

9. The Australia-Chile Free Trade Agreement 2008 should not be solely focused upon ensuring that “the rights of Australian holders of intellectual property enforcement are protected effectively and enforced by binding Chile’s intellectual property regime”. There is a need for effective measures to prevent the over-enforcement and abuse of intellectual property rights. In accordance with the World Intellectual Property Development Agenda, it would be preferable “to approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns”.

10. The Australian Government should develop a comprehensive policy agenda in respect of intellectual property and development. Such an agenda should inform its negotiations in respect of bilateral treaties, such as the Australia-Chile Free Trade Agreement 2008, proposed regional agreements like the ASEAN Free Trade Agreement, and multilateral forums, such as the World Intellectual Property Organization and the World Trade Organization.

11. The Australian Government should play a leadership role in the development of a treaty in respect of Access to Knowledge (A2K) in order to promote a “rich and accessible public domain”.

12. The Australian Government should seek to effectively implement the Doha Declaration 2001 and the WTO General Council Decision 2003. There is also a need for the Australian Government to investigate alternative mechanisms – such as prizes, health impact funds, and open source licensing – to encourage research and development in respect of infectious diseases, such as HIV/AIDs, tuberculosis, malaria, and neglected diseases.

13. The Australian Government should “accelerate the process on the protection of genetic resources, traditional knowledge and folklore.” In particular, it should implement the articles of the Declaration on the Rights of Indigenous Peoples 2007, dealing with the protection of Indigenous intellectual property, cultural heritage, and traditional knowledge. Furthermore, the Australian Government should strengthen domestic protection of genetic resources, and encourage its neighbours to effectively implement the Rio Convention on Biological Diversity 1992.

14. Given its deep concern with addressing climate change, the Australian Government should reform domestic and international patent laws to allow for the transfer of low emission patented technologies to developing countries.

15. As part of its Development Agenda, the Australian Government should also consider the “links between intellectual property and competition”. It should introduce stronger safeguards to prevent the abuse of intellectual property rights, such as the “evergreening” of pharmaceutical drugs.