Time to come clean on US bedfellow, minister

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 broadened the definition of counterfeiting to call into question the legality of generic medicines.

In July, after the European negotiator found that the agreement's potential threats to civil liberties "far outweighed" its benefits, the European Parliament rejected it by 478 votes to 39.

Australia's joint committee on treaties reacted in the same way. Although it nearly always recommends ratifying agreements signed in Australia's name, it felt on this occasion that Craig Emerson had gone too far.

The committee, chaired by the Labor MP Kelvin Thomson, and made up of members from all sides of politics, unanimously found that the agreement on "frequent occasions" criminalised behaviour "without including safeguards".

If Australia was ever to 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, the committee said.

All the more worrying for the committee was that Emerson had committed Australia to the ACTA without waiting for the outcome of an Australian Law Reform Commission inquiry that is just getting under way.

The commission is examining whether Australia's present 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 that were leaked at the weekend on Australia's role in the negotiations on the so-called Trans-Pacific Partnership Agreement 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 US and Vietnam, the TTP is being sold as means of creating a vast trans-Pacific trading zone, taking in a 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 could not live with the clause: Australia and the US. (Singapore and Peru weren't fussed either way.) The clause would ensure that the two inquiries under way 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 Australia-United States 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 Howard did on intellectual property? I wanted to ask him, but his office referred me to the Department of Foreign Affairs and Trade 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 US 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. More recently it made it easier for Emerson to disappoint car manufacturers in order to get the Malaysia-Australia Free Trade Agreement 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".

This meant that it wasn't until after he had signed the Malaysian 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 is still making them.

An intellectual property expert at the Australian National University, Matthew Rimmer, reckons that what's going on with the Trans-Pacific Partnership is "entirely opaque".

He says there are no policy papers, no discussion, which might be OK were it not for the sneaking suspicion that Emerson is prepared to sell out Australian interests in order to support the US and bring home a deal.

peter.martin@fairfaxmedia.com.au

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