Australia’s involvement in the Trans-Pacific Partnership
Earlier today I had a conversation on twitter with Dr Craig Emerson, Australia’s Minister for Trade, regarding Australia’s involvement in the Trans-Pacific Partnership (TPP). After cogitating on the matter for an hour or two, I sent him the following email:
Dear Dr Emerson,
during our conversation on twitter this evening regarding the Trans-Pacific Partnership, I asserted that secret law is bad law, and that because the TPP is being kept secret, it is therefore bad law. I stand by that assertion.
There have been numerous articles published in the last two years about TPP and its intellectual property proposals. These are based on leaks which so far are the only publicly available source of information about TPP since all negotiating parties (especially, the US Trade Representative) insist that no public comment is allowed until after the document is ratified. It is infuriating to see that DFAT is taking the same approach as the USTR, per Senator Ludlam’s transcript of recent Senate Estimates.[1]
Given the aggressively anti-fair use text which has been leaked([2] and [3]) along with the USTR’s history in pushing intellectual property-maximalism (ACTA and CISPA), as well as the USTR’s insistence that members of the US Congress not be allowed to see the text of the agreement while allowing lobbyists to do so[4], it should not be at all surprising that many people around the world are very concerned about what real effects TPP will have on their rights under the Berne Convention.
Additionally, the prospect of access to generic drugs being restricted through extended patent life at the behest of pharmaceutical companies is a one which will have a massive effect on public health in this nation and any other which trades with the nations making up the TPP. I am very concerned that restricting the availability of generic drugs will massively drive up the price of PBS-covered medications here in Australia.
One of your responses was (https://twitter.com/CraigEmersonMP/status/232735804135440384)
[begin] We brief whomever wants to be briefed. No conspiracy.[end]
I therefore request a briefing from DFAT and your office on Australia’s role in the TPP negotiations and the text which DFAT is negotiating on our behalf. I would also like to know why Australia’s representatives appear to have given away the position which the Howard government’s FTA maintained, and what DFAT expects Australian content producers, rightsholders and inventors (whether pharmaceutical or otherwise) stand to gainin exchange for significantly limiting the rights of Australian citizens.
One final item – during the twitter conversation I insinuated (https://twitter.com/jamescmcpherson/status/232728252404355072) that you had sold Australia out when it came to the PBS and Medicare due to the effects of the TPP. I apologise for that remark.
[1] http://scott-ludlam.greensmps.org.au/content/estimates/trans-pacific-partnership-agreement
[2] http://keionline.org/node/1516
[4] http://www.publicknowledge.org/blog/130-members-congress-speak-out-against-secrec>
I look forward to hearing from you in the near future.
I had been intending to send a letter to Dr Emerson within the next few days on TPP anyway, because I think it is vital that both he and DFAT know that the interests of the citizens of every nation involved in TPP are being slashed and burned in order to maximise the profits of what some term “old media” and “big pharma”.
While I am more than happy to talk about ways in which we can remove counterfeit products from the marketplace (medications especially, since they can cause significant harm), restricting Fair Use rights can have no good outcome. By placing Fair Use under the proposed “3-step test, rights holders get to arbitrarily restrict analysis, discussion, criticism and commentary on any work which they publish. This would kill off parody and satire. This would prevent our schools, universities and other public institutions (including thinktanks such as the Institute of Public Affairs or Menzies House) from educating people. Another section would prevent discussion of flaws in proposals or existing laws, remove the right to record broadcast TV for later viewing, remove the opportunity to investigate whether a supposedly-secure protocol or device was in fact as secure as claimed.
Dr Emerson asserted that I did not have all the facts on the Trans-Pacific Partnership, and that my mind is made up about it. Absent any details on the text of the agreement as it currently stands (and as it is updated), I see nothing good in it. If, however, the minister and DFAT would care to remove public doubt by providing that text (as I mention in my letter to him), then I might change my mind.
Secret law is BAD LAW.