ISPs targeted in Pacific trade agreement

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ISPs targeted in Pacific trade agreement
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Internet industry calls for full disclosure of copyright provisions.

Representatives from Australia's internet industry have called for full disclosure of a proposed free trade agreement between the United States and its allies in the Pacific, concerned that the deal asks ISPs to shoulder onerous burdens around copyright infringement.

The Australian Government has flagged that the Trans-Pacific Partnership Agreement (TPPA) as its “highest regional trade negotiation priority”. Parties to the agreement include Australia, the United States, New Zealand, Singapore, Chile, Brunei, Peru and Vietnam.

The Department of Foreign Affairs and Trade (DFAT) has held the first of five “stakeholder” consultations to discuss the agreement.

Among the attendees was representatives from the Australian Digital Alliance (ADA), who have called for contentious copyright provisions within the TPPA to be disclosed as a matter of priority.

“A robust and open debate is needed,” said ADA chief Matt Dawes.

ADA members include schools, universities, consumer groups, major cultural institutions, IT companies, scientific and other research organisations, libraries and individuals with a common concern about unbalanced intellectual property laws.

“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," Dawes said. "This is necessary to ensure that each country is able to balance copyright law in its best interests.”

Leaked US contentious extension to online copyright

Of particular concern is U.S.effoirts to extend Australia's current online copyright laws, revealed in a leak of the draft text.

The leaked draft from the Santiago talks outlined extensive new powers for rights holders beyond those required by current law - some of which were promoted but inevitably scrapped during negotiations for the controversial ACTA (Anti-Counterfeiting Trade Agreement).

The TPPA offers rights holders:

  • A new legal regime of ISP liability
  • A right to ask ISPs to identify internet users
  • Established (statutory) damages for the rights holder
  • Criminal enforcement for technological measures beyond WIPO internet treaties, even when there is not copyright infringement
  • Outlawing parallel trade in any copyrighted good
  • A 95-year copyright minimum term for works for hire

Australia's "robust view"

The ADA expressed confidence that DFAT, negotiating for Australian interests, will again take a “robust view” in any discussion of IP issues.

But the digital lobby group insisted that public disclosure was still necessary, given the debacle over the lack of transparency in negotiations around the Anti Counterfeit Trade Agreement last year.

“While the US leak is not the negotiating text, it threatens the balance of copyright necessary to foster innovation and creativity in Pacific nations such as Australia,” Dawes said.

“As the world's largest exporter of copyright content, the US stands to gain from the increases of copyright protection and enforcement it proposes to be included in the TPPA.”

Government ignores expert warnings

Dawessaid that last month the Government had accepted many of the recommendations  of Productivity Commission’s report on Trade Agreements, which recommended against the inclusion of IP provisions in regional agreements. The Productivity Commission added that these should only be included in cases where a rigorous economic analysis showed overall net benefits for the agreement partners.

But the Gillard Government’s response to the report - which received little publicity at the time - omitted any reference to this caution about IP provisions.

Furthermore the Government rejected recommendations about quantitative analysis of potential impacts.

“Quantitative analysis can be highly misleading, with conclusions heavily dependent on simplifying  assumptions used in modelling. Agreements will be presented for  consideration by the Joint Standing Committee on Treaties before ratification.”

The Gillard Government’s trade policy statement now describes its “highest regional trade negotiation priority” is to conclude the TPP agreement. 

“The Australian Government will pursue a TPP outcome that eliminates or at least substantially reduces barriers to trade and investment."

Dawes noted that the Government’s statement also agreed that the "public [should] be well informed about trade negotiations and have an opportunity for input."

“This means the draft text, or a framework of the issues should be released even sooner,” he told iTnews.

"The time for meaningful discussions is now so the public can still influence the outcome. This is necessary to ensure that each country is able to balance copyright law in its best interests.”

The Department of Foreign Affairs and Trade has scheduled four other public and industry briefings on the TPPA in Brisbane, Perth, Melbourne and Sydney later this month.

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