Tuesday, August 07, 2012

What's our trade minister up to? What's he signing in our name?

Tuesday column

What on earth is our trade minister doing?

Late last year he flew to Tokyo to sign a so-called Anti-Counterfeiting Trade Agreement that among other things would have also broadened the definition of counterfeiting to call into question the legality of generic medicines.

In July after the European negotiator found the Agreement’s potential threats to civil liberties “far outweighed” its benefits, the European parliament rejected it 478 votes to 39.

Australia’s joint committee on treaties reacted the same way. Although it nearly always recommends ratifying the agreements signed in Australia’s name, it felt on this occasion Craig Emerson had gone too far. Chaired by Labor MP Kelvin Thomson and made up of members from all sides of politics the committee unanimously found the Agreement on “frequent occasions” criminalised behaviour “without including safeguards”.

If Australia was to ever ratify the Agreement it had better first clarify the meaning of terms such as “aiding and abetting” and make sure the term “counterfeit” could never be applied to generic medicines.

All the more worrying to the committee was that Craig Emerson had committed Australia without waiting for the outcome of an Australian Law Reform Commission inquiry just getting underway. The Commission is examining whether Australia’s existing copyright rules should be extended to digital media or be modified. The treaty Emerson signed would have bound Australia and rendered some of the inquiry pointless. The Attorney General’s department is in the middle of a second separate review of technological protection measures (things such as region coding for DVDs) that would have also been rendered less relevant.

A single rush of blood to the head might be regarded as a misfortune. A second looks like carelessness.

Notes of Australia’s role in negotiations over the so-called Trans Pacific Partnership Agreement leaked over the weekend portray this nation as way out in front of every other bar the United States in pushing for tougher copyright rules.

Encompassing Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, the United States and Vietnam, the Agreement is being sold as means of creating a vast trans-Pacific trade zone taking in one quarter of the world’s economic activity.

It is perhaps not surprising that US negotiators want to use the agreement to extend the reach of intellectual property law. Nor is it surprising that other nations led by New Zealand would prefer to leave their intellectual property laws untouched.

New Zealand backed by Chile, Malaysia, Brunei and Vietnam proposed what might be thought of as an uncontentious clause to allow them to leave things as they were. It permitted a signatory “to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws”.

The leaked document says only two nations couldn’t live with the clause - the US and Australia... (Singapore and Peru weren’t fussed either way.)

The clause would ensure the two inquiries under way right now about the future of our copyright laws in the digital age had a point.

Our negotiator’s hard line in favour of the US (and against our trans-Tasman neighbours) is all the odder when set against the conditions the Howard government fought for and won in negotiating the US-Australia Free Trade Agreement.

Those conditions are effectively the same as those asked for by New Zealand, saying that unless specifically provided for nothing in the Agreement “shall be construed as reducing or extending the scope” of Australia’s copyright laws.

Why is Emerson behaving more like a deputy sheriff to the US than did Howard over intellectual property?

I wanted to ask him, but his office referred me to the department instead which provided a bureaucratic response saying Australia would not accept an outcome “that reduced our present flexibility to enact copyright limitations and exceptions in Australian domestic law, including in relation to the digital environment”.

So why join the United States to oppose a provision that would have ensured that? And what else is going on in our name that we don’t know about?

Trade negotiations traditionally take place in secret. The convention made it easier for the Howard government to dud sugar growers in order to get the US deal over the line and more recently made it easier for Emerson to disappoint car manufacturers in order to the get the Malaysian deal over the line.

But Emerson has gone further, rejecting a Productivity Commission recommendation that he “publish an independent and transparent assessment” of future free trade agreements “at the conclusion of negotiations but before an agreement is signed”.

That meant that it wasn’t until after he had signed the Malaysia deal in May that Holden learned he had negotiated away its claim for immediate entry into Malaysia of small cars such as its Cruze. The Cruze gets let in after 2016, if Holden is still around and still making them.

Intellectual property expert Matthew Rimmer from the Australian National University reckons what’s going on with the Trans Pacific Partnership is “entirely opaque”. He says there are no policy papers, no discussion. Which might be okay were it not for the sneaking suspicion he is prepared to sell out Australian interests in order to support the US and bring home a deal.

In today's Sydney Morning Herald and Age

From Knowledge Ecology International:

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