Australia and 11 other countries in the Asia-Pacific region, representing 40% of global GDP, yesterday concluded negotiations on the Trans-Pacific Partnership (TPP). The TPP is the most complex trade agreement Australia has ever entered and covers the full spectrum of goods and services that Australia trades in. To give two examples at different ends of the spectrum, the TPP will provide greater exposure for Australian sugar growers to US markets as well as commercial opportunities to Australian mining equipment service providers in the lucrative Mexican energy sector.
On the IP front, the Department of Foreign Affairs and Trade (DFAT) has stated that there will be no changes to Australia’s IP arrangements as a result of the TPP. Unlike previous free trade agreements such as the Australia-US free trade agreement of 2004 where Australia was required to amend its IP laws, on this occasion Australia was apparently not required to make amendments to any existing laws.
Negotiations were deadlocked over the question of the minimum period of protection of the rights to data used to make biological drugs. The apparent compromise reached between the parties – five years of protection (less than the 12 sought by the US) reflects the need to incentivise the development of life-saving drugs while ensuring access to the medicines, for example in the form of generic drugs.
Although negotiations have concluded, each of the parties to the agreement must now ratify it at the domestic level. This will prove most challenging in the US where President Obama faces opposition from both sides of politics. Nor is it certain to be voted for by the Australian Parliament, with both Labor and the Greens indicating opposition to investor-state dispute settlement clauses, which provide investors with legal redress against a State where its rights are affected by the TPP. The final version of the TPP, while not public, is said by DFAT to contain a carve-out for legitimate government regulation of health and the environment. This will apparently ensure that under the TPP, “Australia’s tobacco control measures cannot be challenged”.
Finally, although the TPP itself will not require changes to Australia’s IP laws, a number of recently conducted or current reviews in Australia mean that IP laws are unlikely to remain static. The Productivity Commission’s inquiry into IP arrangements is in its early stages and will no doubt have regard to the TPP. The Harper Review, released in March 2015, recommended that parallel import restrictions should be removed. The Australian Law Reform Commission’s 2014 report into copyright contains a number of recommendations to which the government is yet to respond.