More on the FTA: the Intellectual Property provisions

Kim Weatherall’s”: detailed sub­mis­sion to the Joint Stand­ing Com­mit­tee on Treaties makes a com­pelling case that the pro­vi­sions on term of copy­right, anti-cir­cum­ven­tion and ISP lia­bil­i­ties in the Free Trade Agree­ment are too pre­scrip­tive (leav­ing lit­tle room for Par­lia­ment to craft appro­pri­ate statutes), weight­ed too much to the inter­ests of the rights own­ers and agreed with­out prop­er con­sul­ta­tion in Australia—despite the oppor­tu­ni­ty pro­vid­ed by the con­cur­rent the Dig­i­tal Agen­da Review (see KW’s post on this). I am strong­ly pur­suad­ed by her argu­ments. I regret that I forgot—in a last minute rush to make the dead­line for submissions—to list my con­cerns about the process by which these pro­vi­sions were adopt­ed in my sub­mis­sion[⇒ relat­ed sto­ry] to the Sen­ate Select Com­mi­tee. I’ll cor­rect this omis­sion if they invite me to tes­ti­fy. On the whole, I don’t think this changes my assess­ment of the val­ue of the Agree­ment because I can’t eval­u­ate the eco­nom­ic impact of accept­ing e.g. the extend­ed copy­right pro­tec­tion (but not the defens­es for non-com­pli­ance) that have been imple­ment­ed in the USA. But I agree with Pro­fes­sor Weather­all that there is plen­ty of room for con­cern. Too often, we find that the lob­bies for IP rights exten­sion (in geo­graph­i­cal indi­ca­tions[⇒ relat­ed sto­ry] or patents or copy­right) are per­suad­ing gov­ern­ments to ignore the fun­da­men­tal require­ment for a bal­ance of rights and oblig­a­tions in IP. Laws for the pro­tec­tion of IP rights, which are monop­o­lies, should express a bal­ance between the soci­ety’s inter­ests in the ben­e­fits of cre­ativ­i­ty, inno­va­tion etc. and the pri­vate inter­est of the rights hold­er. My views on the eval­u­a­tion of IP rights in inter­na­tion­al trade are expressed in “this paper(link to PDF file, Geo­graph­i­cal Indi­ca­tions for Dairy Prod­ucts, about 64k)”: that I gave to the World Dairy Con­gress (2002) on Geo­graph­i­cal Indi­ca­tions and in my pre­sen­ta­tion to the WIIPO Sym­po­sium[⇒ relat­ed sto­ry] on GI’s in San Fran­cis­co last year.

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