Australia is no bystander when it comes to free trade agreements. Having already signed seven FTAs with various trading countries, Australia is currently negotiating a further nine. By far the largest FTA on Australia’s agenda is the Trans-Pacific Partnership Agreement (TPP).

The TPP will account for 25% of world trade once (and if) it is executed.1 There are 11 other countries negotiating the TPP: Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the USA and Vietnam.

Aside from regulating trading activities, the TPP is also expected to impose obligations on national regulation of intellectual property. There has been little in the way of official announcements regarding progress of negotiations for the TPP, including on matters concerning IP. Not to be outmanoeuvred by this secrecy, well-known whistleblower website WikiLeaks recently published a draft of the TPP chapter on IP.2 The draft provisions published by WikiLeaks provide some interesting insights into the different positions being adopted by negotiating countries towards IP.

Public response

Many online commentators have been quick to claim that the draft chapter suggests a number of countries may need to make major changes to their national IP laws as a consequence of signing the TPP. Areas of international public concern relate to medicines, publishers, internet service providers, criminal offences and biological patents, and include:

  • restrictions on the making of ‘temporary copies’ of copyright works in electronic form
  • allowing the patentability of surgical methods
  • placing limitations on access to affordable medicines
  • making ISPs responsible for policing copyright infringement, and
  • lengthening the term of copyright protection.

Much criticism from the online community has been directed towards the so-called hard line approach being taken by the US. While it is not easy to reconcile this criticism with the content of the draft chapter released by WikiLeaks, which is a complex and convoluted document by any standard, there are a substantial number of US proposals in the draft which stand out as being contrary to proposals from a majority of other negotiators.

Australia a key US supporter on IP

Although the draft chapter does not point to Australia supporting a wholesale adoption of US proposals, Australia is nonetheless the most outspoken supporter of US proposals of all the TPP participating countries.3

From Australia’s perspective at least, it would appear that the prospect of aligning national IP laws more closely with the US position is not a barrier to signing the TPP. This attitude is arguably consistent with the approach Australia took in negotiating the bilateral FTA which it entered into with the US in January 2005.

It is yet to be seen whether other countries such as Canada and New Zealand will be as willing as Australia appears to be in supporting US proposals regarding IP under the TPP.

At least one thing appears certain from the partial draft TPP released by WikiLeaks: there remains much negotiation to be had between the 12 prospective parties before consensus is reached on IP issues enabling all to sign the TPP agreement.