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Thursday, August 13, 2015

Another TPP draft leaked – and no one is happy

By Claire McMahon, Associate

Another leaked draft of the intellectual property chapter of the Trans-Pacific Partnership (TPP) has been released by KEI Online, no doubt to the dismay of negotiators who are struggling to reach agreement on final outstanding issues (and they thought WikiLeaks was all they had to worry about).

The most recent draft is dated May 11, 2015. The text was released just after the most recent (failed) round of negotiations in Hawaii. (We don't like to suggest conspiracy theories – we leave that to the mainstream media here, but one has to wonder about timing…) As discussed in our earlier post, despite paddling madly to make some waves, the negotiations were a total wipeout, with all 12 trade ministers walking away without reaching agreement. Hawaii :1, TPP: 0. Gnarly.

We tried to dampen some of the media-fed flames surrounding the TPP in a post earlier this year. But the furore surrounding illegal downloading provisions is so yesterday: enforcement is the new tag word that has everyone riled up. Parties are at odds in relation to what civil measures should be implemented against entities who abuse enforcement procedures, and when criminal penalties can be imposed on infringers.

In reality, at this late stage in the game there are few substantive changes; what is of interest in this draft is that it shows the parties openly opposing or supporting particular provisions. For instance, this draft shows that all parties except the US support a proposal to give judges the authority to force an entity which has abused the enforcement procedures to compensate any party which has been 'wrongfully enjoined or restrained'. That should provide an interesting twist to the ongoing illegal-downloading battle. Under this provision film production companies would have to pay the expenses (which may include the legal costs) of anyone they 'wrongly' accuse of infringing their rights.

In general, it is clear that the US is still taking a very strong position on intellectual property protection. For example, in this draft it is still pushing to extend copyright protection to 70 years beyond the life of the author. However, it is facing greater opposition to its hardline proposal to criminalise gaining access to trade secrets held on computer systems. This is allegedly in response to growing fears of cyber espionage. This latest draft includes two new proposals, both supported by Australia, which create exceptions for whistleblowers who expose illegal activity.
As usual, the public and media reaction to the leaked text has been overwhelmingly negative. But at this advanced stage, any further changes to the TPP text will likely only be minor. The question then becomes: will the parties be able to reach agreement at all? We'll be sure to let you know when we do.

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