User:Pde/USFTA

Problems with the IP-related provisions of the US-Australia Free Trade Agreement

Copyright Term Extension

• Is it satisfactory to make logical arguments against aspects of the USFTA, or should we really be trying to collect economic evidence (particularly on the affect of a term extension)?
• Matthew Rimmer's Notes on Copyright Term Extension in Australia
• Peter Eckersley's annotated diagram of the effects of a term extension.

Anti-Circumvention Rules

• The addition of a use prohbition for circumvention devices (in addition to pre-exising restrictions on distribution); very limited scope of exceptions; awkwardness of rulemaking processes.

Exceptions

The treaty contains a list of stated, and exclusive (not inclusive) exceptions in relation to the anti-circumvention provisions (Article 17.7(e)). Not all of Australia’s current exceptions are in this list. For instance, our exceptions in relation to libraries will likely be changed. First, the only exception relating to libraries refers solely to non-profit libraries: at the moment, our Act doesn’t make the same distinction between privileges for corporate libraries and non-profit libraries.

Next, libraries and archives currently have some exceptions: for reproducing (and circumventing to do so) for preservation purposes, or to supply copies of articles for research/study. These do not appear in the FTA.

It is worth noting that there is a fall back position. The government can create exceptions, if

"an actual or likely adverse impact on those non-infringing uses is credibly demonstrated in a legislative or administrative review or proceeding" (Article 17.4(7)(e)(viii)

The review does not have to be administrative, as it is in the US. However, there are three things to note about this fall-back:

1. It has to be reviewed again after four years, which will not be long enough for effects to be obvious. It will also be arduous, particularly for the non-profit sector. Overall, it seems odd that a small market like Australia should agree to a provision that would be more suited to much larger markets.
2. The onus will be on those seeking an exception to prove harm. Harm is very difficult to prove in the copyright area, a justification offered constantly offered by copyright owners themselves.
3. The equivalent procedure in the US - run out of the Copyright Office - has been largely unsuccessful in generating new exceptions.

• Are there other changes required by the FTA? Would the FTA pre-empt a high court ruling which restores Sackville J's interpretation in Sony v. Stevens?

Safe Harbour & notice-and-takedown

• Would DMCA style safe harbours be a net improvement on the current situation for Australian users of copyright works?

• Is counter-notification effective?

Other IP-related aspects of the FTA

Are there other aspects of the agreement (compulsory licensing of patents, trademarks, GIs) which are of concern?

Patents

• Mandatory patent term extensions

• generic pharma

• Article 17.9.7 restricts the scope of compulsory licensing of patents which would be possible under Article 31 of TRIPs. Australia is probably (?) not currently using compulsory licenses which would be affected by this provision, although the US itself may be [1].

Procedural Concerns

• "Trick or Treaty"
• Kim's notes on the policy process