Wikileaks releases highly anticipated IP Chapter of the Trans-Pacific Partnership Agreement

Adding to what was already going to be a big month for the Trans-Pacific Partnership Agreement (“TPP”), Wikileaks recently published a draft of the controversial Intellectual Property Chapter (“IP Chapter”).

Arguably “the most significant international commercial agreement since the creation of the World Trade Organization in 1995”, the TPP is a treaty which aims to establish a free trade zone in the Asia-Pacific region. It has been negotiated by Australia and eleven other Pacific-Rim countries (including the U.S, Canada, Japan, Vietnam, Malaysia, Peru and possibly China) since 2008.

There has been much controversy surrounding the TPP. Its supporters such as our Department of Foreign Affairs and Trade, claim it has the potential to increase access to goods and services, lower prices, and benefit consumers directly. Opponents of the TPP have labelled it as a “dream come true for Hollywood, copyright trolls and big Pharma” and a “Christmas wish-list for major corporations” .

Why the nasty names you might ask?  Well, critiques of the TPP see the very privately negotiated agreement as a back-door mechanism used by the participating countries (read – the US) to introduce controversial laws without public consultation. This includes holding ISPs liable for copyright infringement, which was part of the unpopular Stop Online Piracy Act (“SOPA”) abandoned by the US congress last year following mass protests, including black-outs by Google and Wikipedia, or criminalising mobile phone carrier-unlocking, making the highly anticipated US Unlocking Technology Act of 2013 unlikely.

While the version of the IP Chapter leaked may not reflect the exact state of play of the negotiations, given it is dated August 2013 and various meetings have been held since that time, it makes for an interesting read. This is because it not only reveals the negotiating positions of the parties, which provides a rare insight into the power dynamics at play in such negotiations (a bit of US vs Canada rivalry anyone?), but also because it contains some controversial proposals, which, if they were to form part of the final agreement, would significantly alter the Australian IP landscape.  Detailed summaries of the Chapter are available here and here, but below are a couple of proposals which specifically caught our attention.

Expanding copyright protection to temporary reproductions

Article QQ.G.1 proposes a wide prohibition on reproductions of copyright material, including where such reproductions are temporarily stored in electronic form.  The problem with this prohibition is immediately apparent; it effectively makes temporary caching of web pages illegal and therefore most ordinary day-to-day use of the internet, such as Google searches (as users performing such searches are not searching the active web, but Google’s cache of it, as explained in this video, or this chart).  Presumably to deal with this result, a footnote has been suggested by parties such as New Zealand and Japan which allows for exceptions and limitations to the prohibition for temporary acts of reproductions which are transient or incidental and an integral and essential part of a technological process.

Makes sense right? Not only is the footnote consistent with the current exemption to copyright infringement found in section 43A of the Copyright Act 1968 (Cth), it also reflects the position the UK Supreme Court took on this issue earlier this year, when it decided that temporarily stored web pages which contain copyright material do not constitute copyright infringement. Yet, as things stood in August of this year, it is entirely unclear whether the final agreement will contain this footnote, as according to the negotiator’s note, although the exception is not substantively opposed to, the parties continue to consider whether the footnote is required.

Making Internet Service Providers (ISPs) liable for copyright infringement

Article QQ.I.1 contains a controversial proposal for the introduction of legal incentives for ISPs to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials.  Under this proposal, responsibility for removing copyrighted content lies with ISPs, and potentially requires ISPs to terminate users’ accounts. There has been recent discussion in relation to this issue in Australia, following the iiNet case (which we wrote about here and here) in which the High Court decided that an internet service provider was not liable for copyright infringements by its customers.  In New Zealand ISPs and copyright owners use a graduated response system to deal with ISPs customers who have been identified as infringing copyright. We wrote about this here. There is currently no such system in Australia.

We hope to find out which proposals make it into the final agreement before the end of the year, as an important round of negotiations between the Chief Negotiators concluded yesterday in Salt Lake City and negotiations are anticipated to conclude next month in Singapore.  Watch this space.