TPP: Son of ACTA secrecy

POSTED BY Rick Shera
26 November 2010

posted in l@w.geek.nz | TPPA | Intellectual Property | Copyright | International | ACTA | Trademarks

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It is disappointing to see a return to original ACTA-like secrecy in the Trans Pacific Partnership negotiations in terms of the text (which is presumably under discussion, although how would we know).

New Zealand Ministry of Economic Development did a good job in the ACTA negotiations in my view.  New Zealand was one of those countries that held the line right from the start against maximalist copyright and trademark provisions such as ISPs taking on even more liability (a trend I mentioned the other day) and draconian three strikes internet termination. NZ was also one which pushed for disclosure and transparency - eventually accepted around the time of the PublicACTA Wellington Declaration.

My concern is that the same types of provisions that the US was forced to back down on in ACTA will now be forced into New Zealand and others' laws via TPP.  I am not just shadow-boxing here. The Ministry of Foreign Affairs and Trade, which is taking the lead role in this free trade agreement overall, has noted in its fact sheet:

In other free trade negotiations the United States has generally pursued a negotiating agenda that extends beyond goods and services into areas such as intellectual property.... Similar issues are likely to arise in the Trans-Pacific negotiation

Son of ACTA.

But, unlike ACTA, intellectual property is not the primary focus of the TPP.  I fear this may allow expansion of IP protection to slip through unnoticed.  I also fear that NZ's and other countries' acceptance of the stricter IP enforcement regimes desired by the US (and Japan if it enters the negotiation) may be a bargaining chip that we will be more willing to give away if it gets us a FTA with the US.  We saw what that meant for IP change in Australia with its US FTA (PDF).  Should we be concerned in that context to see that MFAT is taking more of the lead role with TPP? MED (which looks after our IP policy and operation) took the lead in ACTA.

With Australia already in a FTA with the US and if Japan joins the negotiation, NZ may therefore be up against it.  We won't have the bulwark of European transparency and resistance to maximalist IP either.

Of course, that is what negotiation is all about - bargaining chips - and I do not suggest that IP is so sacrosanct as to never give way to other benefits of a FTA, if those over-arching benefits can be clearly shown.

There is a TPP negotiation meeting in early December here in Auckland.  Now is the time for officials to be releasing any draft text so that we can all contemplate the advantages and disadvantages of TPP extension, and provide input, just as was done with ACTA.

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