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Wednesday, November 11, 2015

TPP comes in at 6000 pages. Here are the key bits.

By Claire McMahon, Associate

It's official – the negotiated text of the TPP has been released by DFAT, one month after the agreement was announced, but is still subject to legal review and authentication in each of the official languages. The agreement runs to more than 6000 pages. Because we know our readers are too busy to pick through that to find out how some of the most topical aspects of the IP chapter were resolved, we've summarised them here for you.

How the negotiations developed

Although the text is largely unchanged since the last WikiLeaks leak which we reported on last month, there has been a raft of changes across the history of the TPP negotiations. Sometimes this was due to shifts of position. In other cases, until the very end, parties stood firm on issues that really mattered, politically or economically. For instance, market access for agricultural products such as rice, dairy and sugar kept Japan, the US, Canada, New Zealand and Australia locked in tight negotiations right down to the line.

Intellectual property positions developed significantly over the course of the negotiations. As we have previously reported, from the outset the US pushed for strong intellectual property rights. From criminal penalties for cyber-espionage to an extended period of copyright protection, parties were often in a gridlock with some trying to moderate the US positions. In some instances, this has produced some rather interesting compromises, as discussed below.

Patents and pharmaceuticals

One of the most keenly observed battles was right at the end of the negotiations in relation to the period of data protection for biologic products. The US originally pushed for a 12-year data exclusivity period. Australia refused to budge from the five-year protection period which reflects our current law. Trade Minister Andrew Robb repeatedly asserted that the TPP would not change Australia's data protection laws as he attempted to quell domestic concerns about the final text of the TPP. The US ultimately compromised with an eight-year proposal.

But the final result reveals a further and somewhat strange compromise. Parties seemingly have the option between a minimum eight-year data protection period or a minimum five-year protection period plus 'other measures… recognising that market circumstances also contribute to effective market protection'. This second option needs to deliver a 'comparable' market outcome. This is set to be reviewed in 10 years to see if the exclusivity periods are working. There are also transition periods for developing countries.

For a chapter littered with footnotes to provide clarification and guidance on what is meant by the main text, the data protection provisions are surprisingly sparse. It is therefore not entirely clear what is meant by 'other measures', and how countries (such as Australia) will implement these to deliver 'comparable market outcomes'. It remains to be seen whether Trade Minister Robb's assurance that the TPP will not affect Australian law in this regard holds true.

This may also depend in part on Australia's changing patent law landscape. Australia's strong bargaining position in relation to data protection was premised in large part on our patent law system providing strong protection for the biotechnology research and development sector. Of course, that was moments before the High Court denied protection to isolated genetic material in the Myriad decision. And now the Productivity Commission's recently released Issues Paper, ahead of its review of the entire IP system, highlights the balance of rights in the pharmaceutical sector as 'particularly contentious', and singles out biologic drugs in this context. The landscape may yet change further. 


As expected, the length and breadth of the copyright provisions in the TPP still seem to be causing a lot of public angst. Copyright protection for a work, performance or phonogram of 70 years beyond the life of the author (or otherwise from the end of the calendar year of the first authorised publication) is in fact consistent with current Australian law.

However, there are also continuing concerns about the breadth of copyright protection. For example, the 'right of communication to the public' gives authors the exclusive right to authorise or prohibit the communication to the public of their works, by wire or wireless means. One IPKat commentator queries whether content hosts such as YouTube will infringe in circumstances where it simply may not be possible to verify the authority for each video, given the amount of content uploaded to the site.

Although the TPP provides for limitations and exceptions to copyright protection, there is no explicit US-style 'fair use' defence. This has upset those US groups who have been pushing for this type of protection. However, it has probably pleased those US industry interest groups who have been just as vocal in demanding strong copyright protection in this area.

Unlike the US, Australia does not currently have a fair use defence in its copyright laws. We have a 'fair dealing' provision, with specific and more limited exceptions to copyright infringement. Given the complexity and scope of Australia's copyright laws in general, there has been growing demand to reform Australia's copyright laws, including by introducing a fair use defence. Not everyone would see that as a reform, so the TPP position may be welcomed in some quarters in Australia.

Perhaps the greatest outcry has been in relation to provisions regarding internet service providers (ISPs). The TPP requires implementation of a Canadian-style 'notice-and-notice' system for ISPs. In order to obtain 'safe harbour' legal immunity, ISPs will be required to forward notifications from copyright owners to customers whose IP address has allegedly infringes the copyright in question. Further, where a copyright owner has made a 'legally sufficient claim of copyright infringement', ISPs will be required  to provide information they hold about the infringer's identity 'expeditiously'. Australia has recently introduced legislation that requires ISPs to retain users' metadata for two years, which may be reviewed by law enforcement and intelligence agencies or anti-crime and corruption commissions upon request. Despite the Australian Government's assurances that the purpose of these laws is to combat terrorism – rather than to police online copyright infringement – the regime envisaged by the TPP could make it easier for copyright owners to access data about alleged infringers.

ISPs will also be required to remove infringing material if they become aware of it, and will receive legal immunity if they take down material in 'good faith', including from content owners if it is not later found to be infringing.

The ISP provisions have caused great concern about the privacy of internet users, as well as the increased police-like status of ISPs, particularly in countries where – unlike the US or Australia – the law has not yet moved in this direction. Brunei and Mexico will have three extra years to implement these provisions, given the amount of legislative change to be TPP-compliant in this respect.

Trade secrets

We previously reported that the US had pushed for provisions that criminalise access to trade secrets held on computer networks, in a move to help fight cyber-espionage. Australia was among those advocating for clear exceptions for whistle-blowers and journalists. The final text of the TPP suggests a compromise – parties, at their discretion, may limit criminal procedures to particular circumstances, such as where the act is intended to injure the owner of the trade secret.

However, many are now worried that the lack of explicit exceptions in this provision means that new laws will be detrimental to freedom of speech and freedom of the press.

Next steps

The TPP is still yet to be officially signed, with the Australian Government stating that the agreement at the end of the negotiations was to 'release the full TPP text as soon as possible, and well in advance of its official signing'. Reports suggest that signatures on the final text are expected early in 2016, with ratification in each country to take place over the next two years. Each party will follow its own domestic treaty-making process: in Australia, this means the TPP text and National Interest Analysis will be tabled in Parliament for 20 joint sitting days before any binding treaty action is taken. The Joint Standing Committee on Treaties will conduct an inquiry into the TPP and report back to Parliament. Consideration must be given to whether our existing legislation is adequate to give effect to the treaty provisions, or if further legislation must be implemented or amended.

In the meantime, many legal commentators, journalists and members of the public are currently using the media to encourage others to voice their ongoing concerns about the TPP deal. Aside from the IP issues outlined above, other angst-inducing aspects include the lack of detail in relation to environmental regulations and the chapter on investor-state dispute resolution procedures. Many fear the latter will give corporations power to sue governments for decisions adverse to their interests, including decisions made in relation to intellectual property.

Whether any of this grass-roots campaigning makes any difference remains to be seen, as the TPP has been forged over seven or so years, despite much public backlash. Either way, we will keep you posted.

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