The Trans Pacific Partnership Agreement (“TPP) between twelve Pacific Rim counties, including Australia and the United States, was finally made public on 5 November.
The text of the Agreement will now be reviewed by various parliamentary committees before Parliament votes on legislation to implement the Agreement in Australia, likely to be in February or March next year. If the implementing legislation is passed in Australia and the other signatory countries, the Agreement will be ratified and come into force. It is expected that it could take up to two years before the Agreement comes into force in all 12 signatory countries.
The intellectual property provisions of the TPP Agreement are contained in Chapter 18. Chapter 18 includes a number of measures designed to protect intellectual property rights, many of which reflect Australia’s current intellectual property laws. However, a number of concerns have been raised including by the Australian Competition and Consumer Commission (ACCC), Australia’s competition regulator, in its submissions to the Productivity Commission. The ACCC is concerned that some of the provisions in Chapter 18 may “tilt the balance in favour of IP rights holders to the detriment of competition and consumers”. In addition, the ACCC has warned that the investor-state dispute settlement provisions (which give foreign companies the right to sue the Australia government for introducing laws which harm their interests) “risk impeding domestic reforms in the public interest”.
The biggest change to intellectual property law in Australia which will result if the Agreement is implemented in its current form is Australia would be required to implement criminal procedures and penalties for acts including the unauthorised misappropriation of trade secrets. Currently in Australia the only action which can be taken against a person or company who misappropriates trade secrets is a civil claim for breach of confidence. The Agreement also does not make clear what defences will be available to those alleged to have misappropriated trade secrets which is concerning for journalists and whistleblowers.
At this stage, it is still a case of wait and see. Various bodies are expected to conduct further analysis on the provisions of the Agreement to determine the likely impact on Australia. Also, depending on Parliament’s assessment of the implementation legislation, the Agreement may need to be renegotiated or side letters entered into to address any issues.