11 January 2014


Two pieces by Kimberlee Weatherlee on the TransPacific Partnership Agreement (TPPA), the very important and still very secret international trade agreement that potentially has strongly adverse implications for Australian intellectual property, environmental and consumer protection law, health law and privacy law.

(The Office of the Australian Information Commissioner - exponent of the national pro-disclosure Freedom of Information regime  - refuses to provide access to its over 300 documents regarding privacy aspects of the TPPA, unredacted or otherwise, on the basis that it doesn't have the resources to handle such queries. It is ironic that the ostensible champion of access and accountability, an agency that includes the national Freedom of Information Commissioner, places itself outside the FOI regime by explaining that it is an under-resourced "micro-agency". That is a welcome signal for Ministers seeking to evade appropriate scrutiny: just cut and thereby permit agencies to disregard accessability on the basis that they have too few resources. )

Weatherall's 'TPP – Australian Section-by-Section Analysis of the Enforcement Provisions' (Sydney Law School Research Paper No. 13/84) analyses -
the leaked 30 August 2013 text of the TPP IP Chapter from an Australian perspective, focusing on the enforcement provisions only. The goal is to assess the compatibility of provisions in the current draft with Australian law and Australia’s international obligations: including TRIPS and the Australia-US Free Trade Agreement (AUSFTA). The review has several key purposes:
1. To contribute careful analysis to the current debate on the TPPA IP proposals;
2. To offer input into the Australian processes considering the TPPA;
3. To demonstrate to an international audience the relationship between these provisions and TRIPS; and
4. To demonstrate the relationship between these provisions and existing US Free Trade Agreements like AUSFTA.
A surprising number of the provisions go beyond AUSFTA.
Reading the IP provisions of the TPP IP chapter leak dated August 2013 is a maddening, dispiriting process. The provisions are written like legislation, not treaty, suggesting a complete lack of good faith and trust on the part of the negotiating countries. There are subtle tweaks of language, the phrases included or not included from previous treaties; the subtle re-wordings that might give a treaty provision an entirely different meaning. Working out the scope of a country’s obligations if even half of this text becomes treaty is going to be extremely difficult. A range of big picture questions arise as to the relationship between any TPP IP chapter and other obligations to which countries may be subject, and I’m not at all convinced we know the answers. On a substantive level, much about the language of these provisions has changed since the US proposals dated February 2011. Some more extreme elements of the US proposals have been removed or watered down; some safeguards or qualifications have been inserted that preserve domestic flexibility or require consideration of user interests or civil liberties and fair process. Despite this, the chapter is still radically unbalanced. There are still far too few safeguards for defendants and third parties in the context of IP litigation. And there are many specific proposals with potentially negative impacts on the litigation process and on the balance of IP law.
Her 'Ignoring the Science: What We Know About Patents Suggests Dire Consequences from ACTA and the TPPA' in Mercurio and N. Kuei-Jung, eds Science and Technology in International Economic Law: Balancing Competing Interests (Routledge, 2013) looks -
at what research into the operation of the IP system, and particularly IP enforcement, tells us about the issues facing research-based firms, focusing on the ‘science’ side of IP, particularly patents, and using research, and information about domestic developments, to critique the approach taken in the most recent IP negotiations to affect the Asia-Pacific Region – namely, the Anti-Counterfeiting Trade Agreement (ACTA), concluded in late 2010, and the Trans-Pacific Partnership Agreement, which at the time of writing is under negotiation. While much of the literature on patents in ACTA and the TPPA has focused on the (very important) impact on access to medicines, this chapter is concerned with the likely impact on the patent system more generally. We have grown used to hearing that the latest efforts at international IP standard-setting, the ACTA and proposals for IP in the TPPA, will have a deleterious impact on digital copyright law and on access to essential medicines. We have heard much less about the potential impact on the patent system as a whole – a much less sexy topic, no doubt, but in the long term, equally important. The patent research explored in this article suggests that both ACTA and the US’ TPPA proposal are not likely to be helpful in addressing the most pressing issues in patent law today; they risk being positively counterproductive, and exporting to the world the US’ own ‘patent crisis.’ The thought of a flood of low quality patents issuing from patent offices throughout the Asia-Pacific, should give everyone – including the negotiators of these and future agreements – serious pause.