Frequently Asked Questions on Intellectual Property and Public Health Issues
1. Why do we need another Free Trade Agreement (FTA)?
Our existing FTAs have broadened our economy and have helped to create jobs by increasing Australia’s trade and investment flows. As a region-wide free trade agreement, the proposed Trans-Pacific Partnership Agreement (TPP) has a potential to promote trade liberalisation throughout the region and advance the Asia-Pacific Economic Cooperation (APEC) vision of an economically integrated Asia-Pacific community.
Over 70 per cent of Australia’s total trade in 2011 was in the Asia-Pacific region, and our trade with TPP countries accounted for over 30 per cent of our total trade. At the moment, the TPP encompasses twelve Asia-Pacific countries, which together represent a trading area of 792 million people and GDP worth over USD $27 trillion. These are: Australia, Brunei, Canada, Chile, Japan (from 23 July 2013), Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam.
The TPP can boost Australia’s trade with TPP members by delivering new market access for Australian producers and businesses, including small and medium-sized enterprises. The TPP also provides frameworks for TPP parties to consider implications of changes in the business environment and emerging trade issues, and to engage with countries with which we do not have an existing FTA, like Canada, Japan, Mexico and Peru.
2. Why isn’t the Government releasing the negotiating texts?
The countries in the TPP negotiations have agreed to keep the negotiating documents confidential, but we do provide regular public briefings on the status of the negotiations. This is normal practice in international negotiations. In the case of the TPP, this confidentiality safeguards our negotiating positions and strategies, which cover sensitive national interests in relation to market access and Australia’s trade and commerce more broadly.
Even if it were possible to release negotiating texts, these texts would be potentially misleading. The obligations under discussion evolve as negotiation rounds progress. Initial claims are amended gradually over the course of many negotiating rounds until all parties reach their final positions, delivering text that all parties can agree. The difference between early works-in-progress texts and the final text can be vast. The text has no status until all parties have agreed to it.
The Government holds regular public consultations and individual stakeholder meetings to seek input from the community, and to provide updates on the TPP negotiations. TPP negotiators also hold meetings with stakeholders and interested members of the public during negotiating rounds, to talk about progress in the negotiations. The Department of Foreign Affairs and Trade (DFAT) posts progress reports on the DFAT website at the end of each negotiating round.
The TPP Agreement must go through the same democratic processes as other treaties that the Australian Government considers. Once the parties agree on the final text of the TPP Agreement, the Government will make the agreement available publicly and open to scrutiny before the Parliament considers passing it into law. After Ministers table the final TPP text in the Parliament, the Parliament’s Joint Standing Committee on Treaties will coordinate a public review of the agreement. The Committee can then invite submissions and evidence at public hearings, to help determine whether it should recommend to Parliament that the TPP be ratified. More information on the treaty making process can be found on the DFAT Treaties page.
3. Does the Government consult with stakeholders?
The Government consults regularly with stakeholders. The Department of Foreign Affairs and Trade (DFAT) holds formal public stakeholder meetings at least twice a year in state capital cities, which are advertised in advance on the DFAT TPP webpage. Most consultations with stakeholders are on an individual basis and are ongoing. TPP negotiators also hold meetings with stakeholders and interested members of the public during negotiating rounds, to talk about progress in the negotiations.
The Government’s objective in the TPP negotiations is to deliver an outcome which is good for Australians. Hearing from the community is very useful to the Government in developing our negotiating positions. Any stakeholder who would like to be involved should contact the Office of Trade Negotiations in DFAT, and/or send a submission outlining their TPP-related concerns to firstname.lastname@example.org.
4. Are corporations negotiating the TPP negotiations?
No. Corporations do not negotiate the TPP. The Government does not share negotiating texts with corporations, or anyone else. Corporations, along with industry groups, non-government organisations and the wider community, are stakeholders in the TPP negotiations. The Government has engaged with corporate stakeholders in the same way it has engaged with all other stakeholders: through individual consultations at request, and regular public stakeholder meetings.
On intellectual property
5. What issues are under negotiation in the Intellectual Property chapter and why are they important?
There are many forms of intellectual property under negotiation in the Intellectual Property chapter. These include trade marks, geographical indications, copyright and related rights, patents, trade secrets, data required for the approval of certain regulated products, as well as intellectual property enforcement, genetic resources and traditional knowledge.
Australia exports and imports a range of products and services, such as music, films, software, pharmaceuticals, food, appliances, equipment and other technologies, that benefit from effective and balanced intellectual property protection and enforcement regimes here and overseas. Such settings encourage creativity, innovation, certainty and investment, and promote international trade in legitimate products and services while reducing the volume of counterfeit and infringing products and services imported into Australia. The TPP provides an important opportunity to achieve a more consistent approach to intellectual property protection and enforcement across the region.
6. Will negotiations in the Intellectual Property chapter limit Australia’s future policy flexibility?
Australia is seeking an outcome on intellectual property that is consistent with relevant international intellectual property treaties to which Australia is a party, and that retains the flexibilities we currently have.
7. What is Australia’s position on intellectual property enforcement in the TPP?
Australia supports enforcement provisions in the TPP that protect the intellectual property rights of our creative and innovative industries and that are in line with our own effective and balanced enforcement regime.
8. Will the TPP affect our use of the internet and require a ‘three strikes’ regime?
The Government is seeking provisions in the TPP that are consistent with Australia’s existing laws relating to the internet. Contrary to some reporting, the Government is not seeking provisions that would require a ‘three strikes’ regime, where internet service providers are required to cut off internet access after a user is warned three times about internet downloading that may have breached copyright laws.
9. Will the Intellectual Property chapter restrict public use of copyright material online?
The Government understands the importance of striking a balance between the interests of creators and users of protected works, including in the context of the digital environment.
The Government is seeking provisions in the TPP that maintain our existing flexibilities on copyright ‘limitations and exceptions’. Limitations and exceptions are legal flexibilities in copyright law that allow copyright works to be used without express permission from the copyright owner, for example for the purpose of research or study, journalistic reporting and scholarly review. The Government recognises the social and economic benefits of these flexibilities.
We also recognise the need for flexibility so that the Government can consider and implement any recommendations that may be made following our own domestic reviews. These include the current inquiry into copyright and the digital economy by the Australian Law Reform Commission and the current review of technological protection measure exceptions.
The Government is supporting provisions on copyright limitations and exceptions that are consistent with relevant international intellectual property treaties to which Australia is a party, including the Berne Convention, which helps protect copyright on art and literature, the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and those under the World Intellectual Property Organization.
10. Will the TPP require new criminal penalties in Australia for downloading music, movies or TV shows, or making temporary copies?
The Government is not supporting provisions in the TPP that would require any new criminal penalties for downloading music, movies or TV shows, or making temporary copies.
11. What is Australia’s position in the TPP on parallel imports of copyright materials?
Australia supports provisions that allow TPP countries to determine their own parallel importation rules for copyright materials.
On public health
12. Will the TPP affect our Pharmaceutical Benefit Scheme (PBS)?
The PBS is an integral part of Australia’s health system. The PBS ensures that all Australians have reliable and affordable access to a wide range of medicines. The Government has made it clear that it will not accept any TPP outcome which undermines the integrity of the PBS. Nor will the Government permit any outcome which compromises Australian health policy more generally.
13. Will the TPP make it harder for Australians to afford basic medicines?
No. Australians will continue to enjoy reliable access to affordable medicines.
14. Is the Government considering how the TPP will impact access to medicine in developing countries?
The Government understands developing countries’ need for access to affordable medicines. We believe the flexibilities and exceptions under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (including the so-called TRIPS Protocol) are important to developing countries dealing with health crises including HIV/AIDS.
Parties to the TPP have already affirmed their shared commitment to the Doha Declaration on TRIPS and Public Health, which helps least developed and developing countries address public health problems through the TRIPS flexibilities. In May 2013, the Australian Government introduced legislation to implement the TRIPS Protocol in Australia. The legislation would allow Australian manufacturers to export generic versions of vital medicines to least developed and developing countries facing public health problems.