ACCC changes tune on Trans-Pacific Partnership IP impact

TPP no barrier to introducing ‘fair use’ copyright exception, DFAT says

The Australian Competition and Consumer Commission has changed its view of the potential impact the Trans-Pacific Partnership will have on the nation’s intellectual property regime.

Last year the ACCC, in a submission to a Productivity Commission inquiry into Australia’s IP laws, called for a “comprehensive and robust” analysis of IP provisions in the TPP before Australia enacts the trade agreement.

Australia signed the TPP earlier this year.

Although the ACCC noted government claims that signing up to the TPP will not require changes to Australian IP law, its submission said an equal or potentially even more important consideration was “to what extent the TPP might impede Australia from making changes to IP settings in the future”.

Australia’s current copyright protections “may go beyond what is necessary to provide an incentive to create and disseminate original copyright materials, and that they may be providing excessive protections to holders of IP rights,” the ACCC argued.

Although some international agreements may act as a fetter on some copyright reforms, the introduction of a fair use copyright exception “can go some way towards rebalancing the system towards greater efficient use of copyright,” the ACCC said.

However, in a letter sent earlier this month to the Department of Foreign Affairs and Trade, the ACCC said its views on the TPP had shifted after DFAT provided the organisation with additional information on the trade agreement.

The ACCC said DFAT had advised the competition watchdog that the creation of a fair use provision in Australian law would be likely to meet the requirements of the TPP test for whether it is permissible for a party to the agreement to introduce a copyright limitation or exception is permissible.

As a result of the information provided by DFAT, the ACCC in its letter said it “has no present reason to believe the TPP will be an impediment to a number of potential pro-competitive reforms of Australia’s intellectual property laws.”

However, the ACCC is not the only party to raise concerns over the impact of the TPP on IP law reform.

In a submission to an ongoing parliamentary inquiry into the treaty copyright reform advocacy group the Australian Digital Alliance warned of the potential long-term impact of the trade agreement on IP law.

“The highly prescriptive nature of the TPP’s copyright provisions are likely to have a significant chilling effect on future copyright reform in Australia, locking us in to aging and outdated laws as technology and society develops, and discouraging best practice amendments,” the submission states.

“As is increasingly the case with [free trade agreements] internationally, the IP chapter of the TPP is very detailed and prescriptive,” it states.

“It imposes explicit requirements regarding enforcement and recognition of owners’ rights, through mechanisms such as term extensions and anticircumvention provisions. However, it imposes no obligations on copyright owners; provides little support for the flexible exceptions and limitations relied on by industries such as technology and education; and grants almost no protection to consumers.”

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Tags intellectual propertyAustralian Competition and Consumer Commission (ACCC)Trans-Pacific Partnership (TPP)

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