Trans Pacific Partnership (TPP) Bust-up

Wow!

Taking into account the rarefied and diplomatic language in which such papers are written, this is pretty explosive stuff.

The main takeouts suggest that the New Zealand negotiators:

• See TRIPs as the high water mark for IP law and its enforcement and would resist any attempts to go beyond that:

As noted above, New Zealand considers that TRIPS provides a valuable and appropriate framework to achieve the horizontal outcomes, including the development of a platform for a future region-wide FTA. Our analysis also suggests that we should be cautious about moving beyond TRIPS standards, given the differing levels of economic development and the apparent lack of evidence of whether stronger intellectual property protection has increased innovation, particularly in developing countries.

• In that light, consider the WIPO internet treaties are potentially detrimental to innovation, are too inflexible and have been overtaken by internet developments and new business models.  

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty are examples of such approach. Both treaties attempt to deal with the challenges of enforcing intellectual property rights in the digital environment through legislating on technological measures and rights management. However, by providing stricter digital enforcement measures that are based on traditional concepts of copyright protection, the treaties have limited ability to recognise the reality of emerging new business models and new ways of consuming creative works via the internet.

This represents a significant change. Back in mid 2007, when the Copyright (New Technologies) Amendment Bill (PDF) was reported back to Parliament from Select Committee, the WIPO internet treaties were clearly considered good policy:

This bill takes account of international developments in copyright law, and incorporates many aspects of the two treaties negotiated by the members of the World Intellectual Property Organisation (WIPO)—the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

• See stronger IP law as potentially damaging to technology importing countries, including developing countries

The problems of overprotection are particularly acute for technology importing countries, including developing countries. The analysis shows that for these countries, IP rights that are too strong will detract from innovation rather than promote it.

• Consider use (and therefore legal protection of) strong DRM in the form of technological protection mechanisms, digital locks etc, to have be overtaken by market activity and technological developments

Developments in the digital content market on the other hand indicate that businesses increasingly recognise that it is not in their interest to enforce copyright through DRM but to focus on monetising current internet user behaviour rather than trying to restrict it. This suggests that neither the WCT nor the WPPT reflect the complexity of creative investment in an online environment and their scope to act as a promoter of innovation remains questionable.

• In general view the push for stronger IP protection to be premature and its need unsupported by evidence
• Doubt that a one size fits all model can ever work anyway
• Prefer that TPP stick to enhancing cooperation between treaty countries so that resources are used more efficiently, cross-border registration of existing rights (especially patents and trademarks) is streamlined and enforcement regimes are of a higher quality rather than necessarily being stronger

Regulatory coordination — this will occur through improved operational coordination based on consistent and "high quality" (rather than "stronger") IP rights

• Are fully aware of and (reading between the lines) support, the openness and transparency which has come about through active stakeholder and community interest in international IP law developments.  Interestingly, ACTA is not mentioned once, but clearly that experience is front of mind