Electronic copy available at: http://ssrn.com/abstract=2443647

University of Western Australia

University of Western Australia-Faculty of Law Research Paper

No. 2014-38

The Pacific Solution: Australia and Negotiation of the Trans-Pacific Partnership

Agreement (TPPA)

Michael Blakeney

Electronic copy available at: http://ssrn.com/abstract=2443647

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The Pacific Solution: Australia and Negotiation of the Trans-Pacific Partnership Agreement (TPPA).

MICHAEL BLAKENEY*

This article examines the negotiation of the intellectual property (IP) chapter of the Trans-Pacific Partnership Agreement (TPPA) which was made public by Wikileaks in November 2013. It suggests that the covert negotiation of the TPPA was anticipated by the confidential negotiation of the Anti-Counterfeiting Trade Agreement (ACTA), which were concluded in December 2010. ACTA involved negotiations between like-minded nations outside the international organizations typically concerned with IP, such as the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO). It is suggested that the features of selected negotiating parties, lack of transparency and which characterized ACTA, established a precedent which has been followed in the TPPA, with implications for the future style of the negotiation of international IP instruments.

THE USA AND IP FORUM SHOPPING

The first steps to establish an international intellectual property regime was the promulgation in 1883 of the Paris Convention for the Protection of Industrial Property. This convention sought to establish legislative norms covering patents, trade marks, industrial designs and unfair competition. Copyright norms were established by the 1886 Berne Convention for the Protection of Literary and Artistic Works. The administration of these two conventions was undertaken by the Swiss Government in an administrative agency: the Bureaux Internationaux Réunis pour la Protection de la Proprieté Intellectuelle (BIRPI). This body was succeeded on 14 July 1967 by the creation of the World Intellectual Property Organization (WIPO) as a specialised agency of the United Nations. The annexation of international IP law by the United Nations Organization was in large part, attributable to the assumption that there was a significant causal relationship between intellectual property, technology transfer and development.1

The Paris Convention entered into force in 1884 with 8 member states2 and the Berne Convention entered into force in 1887, also with 8 member states3. Of Winthrop Professor, University of Western Australia ٭1 See M. Blakeney and G. Mengistie ‘Intellectual Property and Economic Development in

Sub-Saharan Africa’ (2011) 14 The Journal of World Intellectual Property 238–264.2 Belgium, Brazil, France, Italy, Netherlands, Portugal, Spain, Switzerland.3 Belgium, France, Germany, Italy, Spain, Switzerland, Tunisia and United Kingdom.

Electronic copy available at: http://ssrn.com/abstract=2443647

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course at the time that these conventions came into existence most modern states did not exist, thus the principles of international IP law were set down by a fairly small group of colonial powers without the participation of what today we call developing and least developed countries. Currently, the Paris Convention has 175 signatories and the Berne Convention has 167 signatories. As in the United Nations Organization itself, this large number of member states has made the achievement of consensus very difficult and this has precipitated the United States into a search for more congenial IP fora.

The USA signed the Paris Convention on 18 March 1887, but did not accede to Berne until 16 November 1988. It had previously been a signatory to the 1952 Universal Copyright Convention, which was administered by the United Nations Educational, Scientific and Cultural Organization (UNESCO).4

A century after the promulgation of the Paris Convention, the USA sponsored the negotiations within the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) which commenced in 1986 and which resulted in the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), which came into effect. The proposal made by the United States that intellectual property rights (IPR) regulation be shifted to the GATT was because of its disillusionment with WIPO as an effective custodian of the international IPR system.5 The inability of WIPO to propose any effective means to deal with the apparently exponential growth in the global trade in counterfeit and pirated goods had caused the USA to turn to the GATT with its twin weapons of removing tariff preferences from developing countries involved in questionable trade practices and the ability to bring defaulting countries before the dispute resolution system. A key feature of the agitation for shifting responsibility for IP enforcement from WIPO to the GATT was the role of US industry lobbyists. Peter Drahos6 and Susan Sell7 have charted the detail of the role played by these lobbyists in the TRIPS negotiations.At the first meeting of the Preparatory Committee for the Uruguay Round the Chairman announced that an agenda item for discussion for possible inclusion in the Round would be “trade in counterfeit goods and other aspects of intellectual property”.8 At the Preparatory Committee meeting on March 17 to 20, 1986 the US and the EC urged the GATT to reach agreement on broadly acceptable rules dealing with trade aspects of counterfeiting.9 Brazil, with the support of India, Argentina and Cuba insisted that any future action against counterfeiting should 4 The US Secretary of State, George P. Shultz, informed the Director-General of UNESCO,

Amadou-Mahtar M’Bow, of the US intention of withdrawing its delegation and support as of 31 December 1984, because of concerns about mis-management within that organization.

5 See W. Walker ‘A Program to Combat International Commercial Counterfeiting’’ 70 Trademark Reporter 119 (1980).

6 P. Drahos and J. Braithwaite, Information feudalism: who owns the knowledge economy? (Oxford, Oxford University Press, 2003).

7 S. Sell, Private Power, Public Law. The globalization of IPRs (Cambridge, CUP, 2003).8 Preparatory Committee, Note on First Meeting. PREP.COM (86)1, January 31, 1986.9 PREP.COM(86)SR/3 of April 11, 1986, paras 21–22.

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take place in WIPO.10

Impressed by US submissions that the international trade in infringing goods was in the region of $US60 billion per annum,11 the Ministerial Declaration of 20 September 1986 which launched the Uruguay Round explained that:

In order to reduce the distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights ... the negotiations shall aim to clarify GATT provisions and elaborate as appropriate new rules and disciplines.12

An interesting features of this declaration is that after 100 years of reasonably successful international intellectual property legislation, it was considered necessary to elaborate “new rules and disciplines” concerning intellectual property and in a new forum. This forum was initially the GATT, which was subsumed within the World Trade Organization (WTO) established as part of the Uruguay Round.

Following the launch of the Round the negotiators soon became embroiled in fairly acrimonious exchanges over the trade in agricultural products and it was not until April 1994 that the Round was able to be brought to a close at the Ministerial meeting at Marrakesh. The TRIPS Agreement, which substantially resembled the original USA proposal, introduced a comprehensive regime for the civil and administrative enforcement of IP rights (articles 41-60). Article 61 of the TRIPS Agreement envisaged the implementation of criminal procedures and penalties “at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale”.

The WTO turned out not to be the panacea which the USA had sought to deal with counterfeiting and piracy. It was largely unsuccessful in its complaint to the WTO’s dispute panel about the enforcement of China’s copyright law13 and within 10 years of the commencement of the TRIPS Agreement it observed a more than ten-fold increase in counterfeiting and piracy to at least $US650 billion annually.14 Indeed a study commissioned by the USA-based Business Action to 10 Ibid., paras 24and 35.11 This figure was apparently derived from estimates by the US International Trade

Commission of losses from counterfeiting, see. G.W. Abbott, Jr and L.S. Sporn (eds), Trademark Counterfeiting § 1.02[A] (2002).

12 Ministerial Declaration on the Uruguay Round, WTO Doc., MIN. DEC, 20 September 1986.13 China – Measures Affecting the Protection and Enforcement of Intellectual Property

Rights, Report of the Panel WT/DS362/R, 26 January 2009).14 It should be noted that there is a significant lack of agreement about the size of the

annual trade in infringing products. See C. Fink, K. Maskus and Yi Qian, ‘The Economic Effects of Counterfeiting and Piracy: A Literature Review’, WIPO doc., WIPO/ACE/6/7, September 3, 2010; L. Yager, ‘Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods’, WIPO/ACE/6/4, September 3, 2010.

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Stop Counterfeiting and Piracy (BASCAP) and published in February 2011, projected that by 2015 the global value of counterfeit and pirated products could be up to $US1.77 trillion.15

Within the TRIPS Council of the WTO which was the administrative body set up to administer the TRIPS Agreement, the USA found that its initial success in securing the TRIPS Agreement as the product of a collaboration between a small-group of like-minded (industrialized) nations, was subverted by the increase in the size of the WTO to include most of the developing and least developed countries. Thus at the TRIPS Council meeting in June 2006 the proposal for an “in-depth discussion” of enforcement issues16 met with strong opposition from the leading developing countries such as Argentina, Brazil, China, and India who considered the enforcement issue a diversion from development issues.17 At the TRIPS Council meeting in October 2006, the EU, with support from Japan, Switzerland, and the US submitted a joint communication which asserted that the TRIPS Council was “an appropriate forum to examine and assist Members in the implementation of enforcement provisions of the TRIPS Agreement.” 18 A number of Least Developed Countries (LDCs) objected to this proposal on procedural grounds and it was rejected.19 China, with the support of Argentina, Brazil, Cuba, India, and South Africa, declared that “enforcement could not be a permanent agenda item in the Council.”20

From 2006 the USA and Japan had began joint discussions on a new multilateral treaty to combat counterfeiting and piracy.21 During 2006 and 2007 these discussions were extended to include Canada, the EU and Switzerland. On 23 October 2007 there was a simultaneous announcement by the USA, European Union, Japan, South Korea, Mexico, New Zealand, Switzerland, and Canada of negotiations for a Plurilateral Anti-Counterfeiting Trade Agreement (ACTA). It was described as “creating a strong modern legal framework which reflects the

15 Frontier Economics Ltd, London, Estimating the global economic and social impacts of counterfeiting and Piracy. A Report Commissioned by Business Action to Stop Counterfeiting and Piracy (BASCAP), February 2011, available at http://www.iccwbo.org/uploadedFiles/BASCAP/Pages/Global%20Impacts%20-%20Final.pdf, at 8-9.

16 Enforcing Intellectual Property Rights: Border Measures: Communication from the European Communities, WTO doc., IP/C/W/471, June 9, 2006.

17 ‘EU Gets Little Support for Enforcement Proposal at WTO; CBD Issue Unresolved’, INTELL. PROP. WATCH (June 16, 2006), http://www.ip-watch.org/weblog/2006/01/25/ustr-clarifies-demand-for-details-on-chinas-ipr-enforcement-cases/.

18 Enforcement of Intellectual Property Rights: Joint Communication from the European Communities, Japan, Switzerland and the United States, WTO doc., IP/C/W/485, Nov. 2, 2006, para.4.

19 See T.I. S. Gerhardsen, ‘WTO TRIPS Council Stumbles over Inclusion of Enforcement’, Intell. Prop. Watch, Oct. 27, 2006, accessed at http://www.ip-watch.org/weblog/2006/10/27/wto-trips-council-stumbles-over-inclusion-of-enforcement/

20 Ibid.21 Office of the United States Trade Representative, The Anti-Counterfeiting Trade

Agreement, ‘ Summary of Key Elements Under Discussion’, http://www.ustr.gov/webfm_send/1479, accessed 1 December 2010.

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changing nature of intellectual property theft in the global economy”.22 Eleven rounds of negotiations followed, initially on a confidential basis before the agreement was finalized at the end of 2010. Legal verification was completed by April 2011 and on 1 October 2011 a special signing ceremony was held in Tokyo with the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore and South Korea all signing ACTA.23

Mainly because of the controversy described below about the lack of transparency in the ACTA negotiations, which has led to political difficulties, the various ACTA signatories have not proceeded to ratification of the Agreement. The situation in the USA is confused. The Office of the US Trade Representative (USTR) has taken the position that ACTA was a “sole-executive agreement” negotiated under the President’s authority and did not require the enactment of implementing legislation.24 In a submission to the USTR 30 US legal academics wrote a submission calling “on the Obama administration to comply with the Constitution by submitting the Anti-Counterfeiting Trade Agreement (ACTA) to Congress for approval” pointing out that “the executive branch lacks constitutional authority to enter international agreements on intellectual property without congressional consent.”25 This issue remains moot.26

On 4 April 2012 the European Commission referred ACTA to the European Court of Justice requesting an advisory opinion on whether it was compatible with treaties which established the EU “particular with the Charter of Fundamental Rights of the European Union”27 and on 3 July 2012 the EU Parliament rejected ACTA by a decisive majority.28 In Australia, the ACTA text and accompanying National Interest Analysis (NIA) were tabled in Parliament on 21 November 2011.29 The NIA was subjected to analysis by the Joint Standing Committee on 22 Press Release, ‘European Commission seeks mandate to negotiate major new international

anti- counterfeiting pact’, IP/07/1573, Brussels, 23 October 2007, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1573&format=HTML&aged=1&language=EN&guiLanguage=en

23 See http://www.ustr.gov/acta.24 See O. A. Hathaway and A. Kapczynski, ‘Going It Alone: The Anti-Counterfeiting Trade

Agreement as a Sole Executive Agreement’ (2011) 15 (23) Insights http://www.asil.org/pdfs/insights/insight110824.pdf.

25 http://infojustice.org/wp-content/uploads/2011/02/ACTA-Comment-Thirty-Professors-USTR-2010-0014.pdf.

26 See C. Eckes, E. Fahey and M. Kanetake, ‘ International, European and U.S. Perspectives on the Negotiation and Adoption of the Anti-Counterfeiting Trade Agreement (ACTA)’ (2012), 20 Currents, International Trade Law Journal 20.

27 European Commission , Press release, ‘Update on ACTA’s referral to the European Court of Justice’

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/354&format= HTML&aged =0& languagee=EN&guiLanguage=en, accessed 22 July 2012

28 By a vote of 478 MEPs against, 39 in favour, and 165 abstained. http://www.europarl.europa.eu/news/en/news-room/content/20120703IPR48247/html/European-Parliament-rejects-ACTA

29 See http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_ Committees ?url=jsct/21november2011/tor.htm

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Treaties (JSCOT) of both Houses of the Australian Parliament. Its report tabled 27 June 201230 recommended against immediate ratification, particularly having “regard to events related to ACTA in other relevant jurisdictions, including the EU and the US”.31

A Working Group of the Mexican Senate conducted hearings which had resulted in a resolution of the Senate on 28 September 2010 requesting that the President stop the process of negotiations for Mexico to sign the agreement.32 This was largely based on objections to the lack of transparency in the negotiating process.33 A resolution of the Mexican Senate of 27 July 2011 requested the President not to proceed with signature of ACTA.34

A press release issued by the Swiss Federal Council on 9 May 2012 announced that Switzerland would defer signature of ACTA referring to the strong increase in criticisms of ACTA since negotiations were concluded, which concerned the Federal Council because these misgivings “concern basic freedoms and important rights.”35

To some extent, the implementation of ACTA by a number of signatory countries has been overshadowed by their participation in the negotiations for the TPPA which is being negotiated between Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, USA and Vietnam. This Agreement is described by some commentators as the “Son of ACTA”36 or as “everything the US wanted in ACTA but didn’t get”.37

TRANSPARENCY OF THE ACTA NEGOTIATIONS

In December 2007, before formal negotiations commenced, the USTR requested that its negotiating partners agree to be bound by a confidentiality agreement which it had prepared.38 Subsequently, this was used by the USTR to classify

30 http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_ Committees ?url=jsct/21november2011/report.htm

31 The Parliament of the Commonwealth of Australia Joint Standing Committee on Treaties, Report 126 (ACTA), Canberra, AGPS, June 2012, para 8.16.

32 http://translate.google.com/translate?u=http%3A//www.senado.gob.mx/index.php%3Fver%3Dsp%26 mn%3D2%26sm%3D2%26id%3D5264%26lg%3D61&hl=en&langpair=auto

33 http://www.techdirt.com/articles/20101005/17320811304/mexican-senate-unanimously-votes-to-remove-mexico-from-acta-negotations.shtml

34 http://comunicacion.senado.gob.mx/index.php?option=com_content&task=view&id=18984&Itemid=1

35 https://www.ige.ch/fileadmin/user_upload/Juristische_Infos/e/press_releases/ACTA_e_09052012.pdf

36 http://arstechnica.com/tech-policy/news/2011/03/son-of-acta-meet-the-next-secret-copyright-treaty.ars; http://www.mektek.net/forums/topic/176299-us-proposals-for-secret-tpp-son-of-acta-treaty-leaked/

37 http://www.michaelgeist.ca/content/view/5686/125/38 Declaration of Assistant USTR Stanford McCoy, Elec. Frontier Found., No. 081599;

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all correspondence between ACTA negotiating countries as “national security” information on the grounds that it was confidential “foreign government information.”39 Similarly, its negotiating partners justified their failure to divulge information about ACTA to their confidentiality obligation. Thus for more than two years no official drafts of the treaty were released for public scrutiny and the specific terms under discussion in the negotiations were not identified. This lack of information, as well as the restricted participation of states in the negotiation of the ACTA and the exclusion of public interest groups from the negotiating process was the subject of widespread criticism, particularly by civil society groups.40 Exacerbating this criticism was the revelation that certain favoured bodies were obtaining preferential access to documents.

In November 2008, the Foundation for a Free Information Infrastructure (“FFII”) applied to the Council of the European Union for access to documents concerning ACTA. This request was refused by the Council on the ground that “unauthorised disclosure . . . could be disadvantageous to the interests of the European Union or of one or more of its Member States,” as the negotiations are still in progress and their disclosure “could impede the proper conduct of the negotiations.”41

In September 2009 a US civil society organization, Knowledge Ecology International (KEI)42, reported that the USTR was using nondisclosure agreements “to selectively share copies of the ACTA Internet text outside of the USTR formal advisory board system.”43 On September 11, 2009, KEI submitted a Freedom of Information request to the USTR, asking for the names of persons who had signed these agreements, as well as copies of them. On October 9, 2009 it received copies of these agreements identifying a total of 32 persons who received the Internet

Declaration of Warren H. Maruyama paras. 4-5 & attach. A, cited in E. Katz and G. Hinze, ‘The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountability of the Office of the U.S. Trade Representative for the Creation of IP Enforcement Norms Through Executive Trade Agreements’ (2009) The Yale Journal of International Law Online 24 at 31, n.30.

39 Exec. Order No. 12,958, 60 Fed. Reg. 76 (Apr. 17, 1995), amended by Exec. Order No. 13,292, 68 Fed. Reg. 60 (Mar. 25, 2008).

40 Eg IP Justice White Paper on the Proposed Anti-Counterfeiting Trade Agreement (ACTA), 25 March 2008, http://ipjustice.org/wp/2008/03/25/ipj-white-paper-acta-2008/; Public Knowledge,Anti-Counterfeiting Trade Agreement, http://www.publicknowledge.org/issues/acta; R. Weissman, http://wikileaks.org/wiki/Secret_Counterfeiting_Treaty_Public_Must_be_Made_Public,_Global_Organizations_Say, 15 September 2008.

41 Letter from Ramón Jiménez Fraile, on behalf of the General Secretariat of the Council of the European Union, to Ante Wessels, Foundation for a Free Information Infrastructure (Nov. 5, 2008), available at

http://action.ffii.org/acta/Analysis?action=AttachFile&do=get&target=08-1835en.wes.wsjj.pdf.

42 KEI was created as an independent legal organization in 2006, assimilating the staff and work program of the Consumer Project on Technology (CPTech) to engages inter alia in global public interest advocacy, and to enhance the “transparency of policy making” http://keionline.org/about.

43 http://keionline.org/node/660.

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texts.44 These included representatives from the Business Software Alliance (3), eBay (4), Google (3), News Corporation (2), a law firm, Wilmer Hale (2), Intel (2) Dell, Verizon, Sony Pictures Entertainment, Time Warner, Consumer Electronics Association (2) the International Intellectual Property Alliance (IIPI) and four persons from two civil society organizations: Public Knowledge (3) and the Centre for Democracy and Technology. The USTR also informed KEI that seven persons received the ACTA Internet text as members of the Industry Trade Advisory Committees on Intellectual Property Rights (ITAC 15)45, as well as three persons from the Industry Trade Advisory Committee on Information and Communications Technologies, Services, and Electronic Commerce (ITAC 8)46. These are two of a number of committees which were established by the U.S. Department of Commerce and the Office of the USTR to “engage business leaders in formulating U.S. trade policy”.47 The role of the business community in the formulation of United States IPR trade policy has been the subject of extensive analyses in relation to the negotiation of the TRIPS Agreement48 and so it is unexceptional that similar business representatives have been involved in contributing to US policy on the formulation of the ACTA. As will be seen below criticism was levelled about the lack of transparency by those persons within and outside the USA who were denied access to negotiating texts.

Indeed, the official position taken by the negotiating parties until April 2010 was draft texts did not exist. Yu suggests that on the basis of the history of the way in which the TRIPS Agreement evolved, this may well have been the case, as the earlier sessions may have been taken up with amassing information.49 In any event, as the USTR noted in its denial of the Electronic Frontier Foundation‘s request under the Freedom of Information Act, ACTA-related documents concerned “information that is properly classified in the interest of national security pursuant to Executive Order 12958.”50 This Executive Order, issued in April 1995 allowed 44 Ibid.45 Anissa S. Whitten, Vice President, International Affairs and Trade Policy, Motion Picture

Association of America, Inc; Eric Smith, President, International Intellectual Property Alliance; Neil I. Turkewitz Executive Vice President, International, Recording Industry Association of America; Sandra M. Aistars, Assistant General Counsel, Intellectual Property, Time Warner Inc.; Stevan D. Mitchell, Vice President, Intellectual Property Policy, Entertainment Software Association; Thomas J. Thomson, Executive Director, Coalition for Intellectual Property Rights; Timothy P. Trainer , President, Global Intellectual Property Strategy Center, P.C., Zippo Manufacturing Company (also former president of the IIPA).

46 Jacquelynn Ruff, Vice President, International Public Policy, and Regulatory Affairs Verizon Communications Inc.; John P. Goyer, Vice President, International Trade,Negotiations and Investment, U.S. Coalition of Service Industries,; Mark F. Bohannon, General Counsel and Senior Vice President, Public Policy, Software and Information Industry Association.

47 http://www.trade.gov/itac/index.asp.48 See P. Drahos and J. Braithwaite, Information feudalism: who owns the knowledge

economy? Oxford, Oxford University Press, 2003; S. Sell, Private Power, Public Law. The globalization of IPRs Cambridge, Cambridge University Press, 2003..

49 P. K. Yu, ‘ Six Secret (and now open) Fears of ACTA’ (2011) 64 SMU Law Review 1 at 24.50 See letter from Carmen Suro-Bredie, Chief FOIA Officer, USTR, to James Love, Director,

Knowledge Ecology International (Mar. 10, 2009), available at http://www.keionline.org/

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documents to be classified as confidential when their unauthorized disclosure “reasonably could be expected to result in damage to the national security.”51 It is difficult to see how information about an agreement concerned with intellectual property enforcement could have national security implications.

The first intimation of the content of the ACTA was a Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement which was posted to the Wikileaks website52. Other sources include the websites of negotiating parties which identified the matters under discussion in the ACTA negotiations, from which the content of the ACTA could be inferred.53 Responding to an increasing crescendo of calls for the publication of the ACTA, in February 2009 the USTR issued a Summary of Key Elements Under Discussion54.The USTR’s Summary stated that “ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist.” It provides “an overview of the elements suggested under the different headings and highlights the main issues.” The USTR noted that “discussions are ongoing; new issues might come up and other issues may finally not be included in the agreement.”

Calls for greater transparency were made even by supporters of ACTA. For example, Dan Glickman, the CEO of the Motion Picture Association of America wrote to Senator Patrick Leahy, chairman of the Senate Judiciary Committee, and to USTR, Ron Kirk that “outcries on the lack of transparency in the ACTA negotiations ... distract from the substance and the ambition of the ACTA which are to work with key trading partners to combat piracy and counterfeiting across the global marketplace.”55 In March 2010 a fact sheet was published informing on the content and the objectives of the agreement.56 It addressed the transparency issue by stating that among the steps negotiating parties had taken to provide more information to the public included: “issuing a summary of the issues under discussion, publishing agendas ahead of each negotiating round and issuing press releases shortly after the conclusion of each round.” However the press releases did little more than list the participating countries and the subjects which were

misc-docs/3/ustr_foia_denial.pdf.51 Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 20, 1995).52 ‘Proposed US ACTA multi-lateral intellectual property trade agreement (2007)’

Wikileaks (May 22, 2008), http://wikileaks.org/wiki/Proposed_US_ACTA_multi-lateral_intellectual_property_ trade_agreement_(2007).

53 Eg the website of the Australian Department of Foreign Affairs and Trade: http://www.dfat.gov.au/trade/acta/summary_of_discussions.html, the Department of Foreign Affairs and International Trade, Canada: http://www.international.gc.ca/trade-agreements-accords-commerciaux/fo/intellect_property.aspx and the Swiss Federal Institute of Intellectual Property https://www.ige.ch/en/legal-info/legal-areas/counterfeiting-piracy/acta.html.

54 http://www.ustr.gov/assets/Document_Library/Fact_Sheets/2009/asset_upload_file917_15546.pdf?ht=

55 Letter from Dan Glickman, Chairman & CEO, Motion Picture Association of America, Inc., to Senator Patrick Leahy (Nov. 19, 2009), available at http://www.scribd.com/doc/22785108/MPAA-letter-re-ACTA.

56 https://www.ige.ch/fileadmin/user_upload/Juristische_Infos/e/acta_factsheet.pdf

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addressed.

The problem with this lack of transparency was that various versions of the alleged ACTA have been made available causing concern to those who consider themselves to be adversely affected. For example the French civil rights organisation La Quadrature du Net on 18 January 2010 placed on the Internet a 56-page consolidated version of the text shortly after an EU stakeholder dialogue meeting.57 This version was of particular concern to NGOs and organizations concerned with the Internet freedom.

On 21 January 2010 UK Junior Business Minister David Lammy was quoted as saying that he could not put documents about ACTA in the House of Commons Library, because other countries wanted to maintain secrecy.58 However, on 17 March 2010 he was reported as being in favour of placing the draft text in the public domain.59 This change of heart was no doubt attributed to a resolution of the European Parliament on Transparency and State of Play of the Anti Counterfeiting Trade Agreement that “the European Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available”.60 On April 15, 2010 a number of European Members of Parliament from the Greens Party wrote to the WIPO Director General drawing his attention your attention to the EU Resolution of 10 March 2010 “ showing the growing concern of European citizens regarding ACTA” and requesting “an expert assessment and analysis of the current provisions of ACTA” from WIPO’s institutional viewpoint “as one the two specialised organisations entrusted with the issue of norm-setting in the field of intellectual property rights and related issues.”61 The letter noted “with disappointment that ACTA has bypassed the multilateral WTO and WIPO institutions which have structured and practised processes to assure participation, information sharing and transparency in international norm-setting negotiations” and it commended WIPO’s “practices of making negotiating texts available, when distributed to all members of the negotiation as well as procedures which allow accredited non-governmental organisations to attend meetings and organise side-events.” This was contrasted with the negotiations for the 8th round of ACTA being negotiated in New Zealand, which was characterised as “secret from the public and consumers, and in defiance of the principles of democratic decision making.” The letter then sought answers to a number of questions about the negotiation of international IP norms. There is no formal record of an answer to this letter,

57 http://www.laquadrature.net/wiki/ACTA_20100118_version_consolidated_text.58 ‘MPs frozen out of super-secret copyright talks’, http://www.theregisterco.

uk/2010/01/21/acta_lammy/ Posted in Music and Media, 21st January 2010.

59 ‘UK IP Minister Lammy Backs EU Release of ACTA Text’ Intellectual Property Watch, 17 March 2010.

60 http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2010-0058

61 Reproduced at http://keionline.org/node/838.

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although in a joint statement issued by the ACTA negotiating partners it was suggested that “it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation.”62 Although the word “trade” appears in the title of the ACTA, it is questionable whether the Agreement can properly be chracterised as a “trade agreement” given that it is largely concerned with IP enforcement and contains no provisions which facilitate or promote trade.63

In anticipation of the ACTA negotiators meeting in Wellington in April 2010 participants at a “PublicACTA Conference” of 10 April 2010 promulgated the Wellington Declaration for the consideration of the negotiators.64 This Declaration appears to have been actuated by concerns about possible attacks on Internet freedoms. In relation to transparency it called for full transparency and public scrutiny of the ACTA process including release of the text after each round of negotiations.

On 16 April 2010 following the 8th round of negotiations a Joint Statement was issued by participants explaining that “negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement” and that “the consolidated text coming out of these discussions” would be made available to the public on 21 April 2010.65 On that day a “Consolidated Text” prepared for public release was made available, described as a “PUBLIC Predecisional/Deliberative Draft”.66 Most of the text was in square brackets, indicating a lack of agreement on those provisions. The publication of the consolidated text was described as a partial victory for transparency, which would not have happened without the agitation of civil society organizations and the various leaked documents.67 The victory was described as partial because the published text was decided “without any input from consumer organisations or ordinary people”.68

62 Eg reproduced at http://www.international.gc.ca/trade-agreements-accords-commerciaux/fo/key-summary-resume-cle.aspx?lang=en . M. Geist, ‘ACTA Guide, Part Three: Transparency and ACTA Secrecy’ 27 January 2009, http://www.mp3newswire.net/stories/0102/acta-guide-3.htm, commented on this statement by annexing two schedules of international the negotiating committees of international organizations, including: WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, in which negotiating documents are freely available.

63 See K. Weatherall, ‘Politics, Compromise, Text and Failures of the Anti-Counterfeiting Trade Agreement’ (2011) 33 Sydney Law Rev. 229 at 233-234.

64 http://publicacta.org.nz/wellington-declaration/.65 http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/437&format=HTML&ag

ed= 0&language= EN&guiLanguage=en66 http://trade.ec.europa.eu/doclib/docs/2010/april/tradoc_146029.pdf.67 G. Moody, ‘One Act is over for ACTA: How Will the Drama End?’ Computerworld, 21

April 2010, http://www.computerworlduk.com/community/blogs/indexcfm?blogid=14&entryid=2922.

68 Ibid.

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Consolidated texts of ACTA were issued in August, October and November 2010. The final text was released on 6 December 2010 after a meeting of negotiators in Sydney for what they called “legal scrubbing”. It was noted that “in fitting form” this final meeting was “performed behind closed doors’ and that the host Australian Ministry for Foreign Affairs and Trade “did not answer press inquiries on the agenda or a list of discussed changes”.69

The negotiation of ACTA by a select group of invited countries, in negotiations attended by a lack of transparency will inevitably taint its acceptance as an international IP enforcement standard, particularly on the part of the uninvited. In an early account of the ACTA a commentator wrote that “the activity envisaged by the plan is more usually undertaken by trade bodies such as the WTO, the G8 group of industrialised nations and WIPO” but that a statement by the European Commission “said that it felt it needed more room to maneuver than those bodies provided.” 70 It was pointed out that the “European Commission wants to create a new layer of intellectual property protections because it says that existing structures such as WIPO are not flexible enough.”71 As the Director General of WIPO pointed out, at the time of the Lucerne round, it is “a bad development for a multilateral agency, that member states start to do things outside. Either the machinery works, or it doesn’t” concluding that “That I think is the real significance of ACTA.”72 He said that the challenge is first, to “make the multilateral system relevant” because international problems require an international solution, as opposed to a partial one. Secondly, the most vulnerable countries are the ones that most need the inclusiveness of the international system in which all countries have a voice. Thirdly it is bad public policy for solutions to happen by default.

A study by Jeremy Malcolm of a number of international institutions observed that “even the WTO, the least participatory of the organizations studied, posts all of its official documents online, and most of the other institutions also make available negotiating texts.”73 He concluded that “ACTA meets none of the basic best practices for transparency of the existing institutions of the intellectual property policy regime.”74 This study was referred to in the submission to the USTR of 30 US legal academics cautioning against the acceptance of the Agreement by the

69 M. Emert, ‘‘Final final’ ACTA Text Published; More Discussion Ahead For EU’ Intellectual Property Watch, 6 December 2010, http://www.ip-watch.org/weblog/2010/12/06/%E2%80%98final-final%E2%80%99-acta-text-published-more-discussion-ahead-for-eu/

70 OUT-LAW News, 25/10/2007.71 Ibid.72 Quoted in C. Saez, ‘ACTA A Sign Of Weakness In Multilateral System, WIPO Head Says’,

http://www.ip-watch.org/weblog/2010/06/30/acta-a-sign-of-weakness-in-multilateral-system-wipo-head-says/

73 J. Malcolm, ‘Public Interest Representation in Global IP Policy Institutions, Am. Univ. Washington Coll. Law Program on Info. Justice and Intellectual Prop., Research Paper No. 2010-06, Sept. 2010, available at http://digitalcommons.wcl.american.edu/research/6/ at 15,17.

74 Ibid at 20.

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President as an executive act.75 They pointed out that ACTA was drafted under unusual levels of secrecy for a legislative minimum standards agreement”.76 They concluded that the “kind of secrecy envisioned and practiced by the USTR needlessly created and fostered an adversarial relationship with the public that reinforced the worst fears and criticism about international intellectual property lawmaking” and that this “has further undermined the legitimacy of the ACTA negotiating process, and ACTA itself.”77

THE TRANS-PACIFIC PARTNERSHIP AGREEMENT (TPPA)Negotiations

The precursor to the TPPA was first the Pacific Three Closer Economic Partnership (P3-CEP), which was launched on the sidelines of the 2002 APEC Leaders’ Meeting in Los Cabos, Mexico, as a trade liberalisation agreement by Prime Ministers Helen Clark of New Zealand, Goh Chok Tong of Singapore and President Ricardo Lagos of Chile. Brunei became a full negotiating party in the fifth round of P3 talks in April 2005, after which the trade bloc became known as the Trans-Pacific Strategic Economic Partnership Agreement (TPSEP or Pacific-4 (P4)).

In January 2008 the USA commenced discussions with the P4 members regarding liberalisation of trade in financial services and on 22 September 2008, the US Trade Representative (USTR) announced that the USA would begin negotiations with the P4 countries with a view to expanding the TPSEP into the TPPA. The objective of the TPPA was to realise “the vision of a free trade area of the Asia-Pacific” forming “a building block for Asia-Pacific regional economic integration”78

In November 2008, Australia, Peru and Vietnam announced that they would join the TPPA negotiations followed by Malaysia in October 2010. South Korea was officially invited to join the TPPA negotiations by the USA in December 2010 after the successful conclusion of a bilateral FTA between the two countries. Canada and Mexico joined the negotiations in October 2012. On 15 March 2013 Prime Minister Shinzō Abe announced that Japan, which had been an observer to the TPPA discussions, would become a full negotiating partner in August 2013. On 20 November 2012, following a visit by President Obama, Thailand announced that it wished to join the negotiations.79 Other countries that have 75 http://infojustice.org/wp-content/uploads/2011/02/ACTA-Comment-Thirty-Professors-

USTR-2010-0014.pdf.76 Ibid. at 8. See also D. S. Levine, ‘Transparency Soup: The ACTA Negotiating Process

and ―Black Box Lawmaking’ , Am. Univ. Washington Coll. Law Program on Info. Justice and Intellectual Prop., Research Paper No. 2011-20, Feb. 2011, available at http://digitalcommons.wcl.american.edu/research/18/;

77 Ibid. at 12-13.78 http://www.dfat.gov.au/fta/tpp/79 However, it should be noted that in the Bangkok journal Nation of 17 March, 2013 Nobel

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expressed interest in TPPA membership are Bangladesh, China, Colombia, Costa Rica, India, Indonesia, Laos, and the Philippines.

Thus far 22 rounds of TPPA negotiations have been held80 On 8 October 2013 TPPA Leaders, met in Bali in the margins of the APEC Leaders’ meeting to outline the progress which had been made in negotiations to date. The Statement issued by the leaders declared that they saw the TPPA “as a model for future trade agreements and a promising pathway to our APEC goal of building a Free Trade Area of the Asia Pacific.”81

The TPPA and Transparency

As with the ACTA negotiations, the negotiations on the TPPA have been shrouded in secrecy and it was not until 13 November 2013 that Wikileaks released the text of the agreement.82 On 28 February 2012, 23 organizations “concerned with openness, scientific integrity, and accountability” wrote to President Obama urging him to “increase the transparency of the [TPPA] “negotiating process”.83 The letter recalled the President’s commitment to creating an “unprecedented level of openness in Government” but that “instead of new levels of transparency, the process has instituted unprecedented levels of secrecy.”84 The letter referred a Memorandum of Understanding 2010 between the parties which imposed

laureate economist Joseph Stiglitz was reported as having advised Thailand against signing the TPPA as this would be “very bad for the development of generic drug industries.” See http://www.twnside.org.sg/title2/FTAs/info.service/2013/fta.info.243.htm.

80 1st round: 15–19 March 2010, Melbourne 2nd round: 14–18 June 2010, San Francisco 3rd round: 5–8 October 2010, Brunei 4th round: 6–10 December 2010, Auckland 5th round: 14–18 February 2011, Santiago 6th round: 24 March – 1 April 2011, Singapore 7th round: 15–24 June 2011, Ho Chi Minh City 8th round: 6–15 September 2011, Chicago 9th round: 22–29 October 2011, Lima 10th round: 5–9 December 2011, Kuala Lumpur 11th round: 2–9 March 2012, Melbourne 12th round: 8–18 May 2012, Dallas 13th round: 2–10 July 2012 San Diego 14th round: 6–15 September 2012, Leesburg, Virginia 15th round: 3–12 December 2012, Auckland 16th round: 4–13 March 2013 Singapore 17th round: 15–24 May 2013, Lima 18th round: 15–24 July 2013, Kota Kinabulu 19th round: 23–30 August 2013, Bandar Seri Begawan, Brunei 20th round 19-24 November 2013, Salt Lake City 21st Round 7-10 December 2013, Singapore.

81 See https://www.dfat.gov.au/fta/tpp/131008-tpp-leadership-statement.html82 http://wikileaks.org/tpp/.83 http://www.openthegovernment.org/sites/default/files/Transparency%20Trade%20Letter-

Final.pdf.84 Ibid.

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“heightened secrecy for the process.”85 The signatories lamented that “this extreme secrecy has shut out of the process small business, civil society and other stakeholders who have a direct and long-term interest in the outcome of these negotiations.”86 They concluded with a plea that

[g]iven these concerns and that draft texts for most chapters are completed, we urge you to mandate public access to these texts, and to establish a model for US transparency in all future negotiations of this sort. The goals of a transparent, collaborative, and participatory government with empowered citizens, as well as a “high-standard, 21st century” agreement that advances the health, safety, enterprise and creativity of the American public, require no less.87

On 9 May 2012, a group of 30 legal academics wrote to the USTR, Ambassador Ron Kirk to express their “profound concern and disappointment at the lack of public participation, transparency and open government processes in the negotiation of the intellectual property chapter” of the TPPA.88 The authors pointed out that “at a time when the last international intellectual property law to be negotiated under a similar process, [ACTA] teeters on the edge of rejection by the European Parliament … the move to scale back participation in the TPP appears highly unwise and counterproductive.”89 The authors pointed out that the “functional and theoretical impact of the lack of transparency and accountability” in the TPPA “will constrain democratic law making over intellectual property matters in the US and abroad, particularly in an era of massive and rapid technological change that is testing the bounds of our current policy framework.”90

Ambassador Kirk’s “initial response” was that he was “strongly offended by the assertion that our process has been non-transparent and lacked public participation” and that it was actually far more transparent than the negotiations for prior FTAs.91 In his more considered response he pointed out that “every trade negotiation requires a balancing of transparency…with confidentiality”.92

The USA strategy in persuading the GATT to take on the issue of IPRs had been to suggest that the size of counterfeiting and piracy generated the notion of “trade-related” IPRs. Inserting an IP chapter into the TPPA was a way of characterising IP as a trade issue as a means of establishing “new international limits on domestic regulation” particularly in matters of digital IPRs “regardless of whether such

85 Ibid.86 Ibid87 Ibid.88 http://infojustice.org/archives/21137.89 Ibid.90 Ibid91 http://infojustice.org/archives/21385.92 http://infojustice.org/wp-content/uploads/2012/06/kirk0530212.pdf.

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regulation discriminates against, or even affects, trade.”93

On 23 May 2012, Senator Ron Wyden introduced the Congressional Oversight Over Trade Negotiations Bill94 which required the Office of the USTR to disclose its TPPA documents to all members of Congress. Senator Wyden maintained that:

The majority of Congress is being kept in the dark as to the substance of the TPP negotiations, while representatives of U.S. corporations-like Halliburton, Chevron, PHRMA, Comcast and the Motion Picture Association of America- are being consulted and made privy to details of the agreement... We hear that the process by which TPP is being negotiated has been a model of transparency. I disagree with that statement. And not just because the Staff Director of the Senate subcommittee responsible for oversight of international trade continues to be denied access to substantive and detailed information that pertains to the TPP talks.95

Associated with concerns about transparency a number of USA legislators have expressed concern about the “Fast Track” procedure proposed for the TPPA. In a letter to President Obama of 14 November 2014, Democrats Rosa DeLauro and George Miller and 150 Democrats in the House of Representatives opposed the “Fast Track” procedure “or any other mechanism delegating Congress’ constitutional authority over trade policy that continues to exclude us from having a meaningful role in the formative stages of trade agreements and throughout negotiating and approval processes.”96 A similar protest was made by 23 Republicans in the House of Representatives.97

Also on 14 November 2013, in response to WikiLeaks publication of the IP chapter of the TPPA, Dr. Julia Willebrand, co-chair of the US Green Party’s International Committee, stated:

The texts published by Wikileaks confirm our fears that the President has sided with multinational corporations over the needs of Americans and people in other nations. President Obama has kept the negotiations a secret, while allowing 600 corporate representatives to assist the U.S.

93 S. Flynn, ‘Kirk Responds to TPP Transparency Demands’, May 10, 2012, http://infojustice.org/archives/21385

94 S3225, A Bill to require the United States Trade Representative to provide documents relating to trade negotiations to Members of Congress and their staff upon request, and for other purposes.

95 Congressional Record, Senate S3517-3518, May 23, 2012.96 http://delauro.house.gov/index.php?option=com_content&view=article&id=14

55:delauro-miller-lead-151-house-dems-telling-president-they-will-not-support-outdated-fast-track-for-trans-pacific-partnership&catid=2&Itemid=21.

97 See M. Weisbrot, ‘The Trans-Pacific Partnership treaty is the complete opposite of 'free trade’

http://www.theguardian.com/commentisfree/2013/nov/19/trans-pacific-partnership-corpo-rate-usurp-congress

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Trade Representative in the TPP drafting process.98

Similar concerns about the lack of transparency of the TPPA process have been expressed by Australian commentators. Pat Ranald, noted that the controversy over secrecy was fuelled by a leaked 2011 version of the IP chapter which revealed on the front page that the negotiating documents could not be released until four years after the completion of the negotiations.99 Although some consultation has occurred with DFAT, it has not made the text available to those with whom it has consulted in contrast with the situation in the USA.

Gleeson, Tienhaara and Faunce, have expressed concerns that the TPPA might be used to undermine the right of Australian governments to make laws in important public policy areas for example in limiting “its capacity to put health warnings or plain packaging requirements on tobacco products or its ability to continue the Pharmaceutical Benefits Scheme”.100

The Australian Pirate Party declared that

It is absolutely appalling that we are still relying on leaked texts to determine just what we’re getting ourselves into with these trade agreements. Even Parliament is being kept in the dark. It’s time to release the text, and all future texts, so that transparency and oversight can result in texts that help, not hinder, legitimate Australian interests. There is no economic justification for the Trans-Pacific Partnership Agreement’s intellectual property provisions. DFAT must immediately hold public briefings to explain their now public negotiating positions. It’s time for some accountability101.

On 4 December 2013 Labor spokesperson for Trade, Senator Penny Wong, called on the Coalition government to release the full text of the TPPA before it is signed by Australia,” in order to assure that the government isn’t signing away the country’s rights in areas including copyright.”102

“WHATEVER YOU SAY MICKEY”

WikiLeaks justified its publication of the IP chapter of the TPPA on the grounds that it “is perhaps the most controversial chapter of the TPP due to its wide-98 http://www.gp.org/speakers/speakers-corporate.php.99 P. Ranald, ‘The Trans-Pacific Partnership and Australia’s right to know’ The Conversation, 19

November 2013, http://theconversation.com/the-trans-pacific-partnership-and-australias-right-to-know-20334.

100 D. H. Gleeson, K. S. Tienhaara and T.A. Faunce ‘Challenges to Australia’s national health policy from trade and investment agreements’ (2012) 196 Med J Aust 354 at 355.

101 http://pirateparty.org.au/2013/11/14/trans-pacific-partnership-ip-chapter-leaked-enforcement-provisions-abound/

102 http://www.zdnet.com/au/australian-opposition-calls-for-tpp-text-to-be-made-public-7000023908/

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ranging effects on medicines, publishers, internet services, civil liberties and biological patents.”103 The cartoon which was posted on WikiLeaks to accompany its leak of the IP chapter of the TPPA depicts a kangaroo shaking hands with Mickey Mouse with the caption which appears in the heading above.104 Thus of all the countries participating in the TPPA negotiations, Australia is singled out as the country which is parroting the USA negotiating position. The released text included the negotiation positions and disagreements between all 12 prospective member states. An examination of the various proposed clauses indicates that Australia’s negotiating position is closely aligned with that of the USA.

Some key to Australia’s negotiating position may be gleaned from the Australian Trade Minister, Simon Crean’s announcement on 26 November 2008 of Australia’s intention to join the TPPA negotiations. He explained that “it will, importantly, allow us to engage the United States, under the Obama Administration, in the evolving economic architecture in the Asia-Pacific region.”105

The Australia–United States Free Trade Agreement

Australia had been castigated for taking a supine position in the 2004 negotiations on the Australia–United States Free Trade Agreement (AUSFTA).106 The USTR, Robert Zoellick, asserted that Australian copyright law provided inadequate protection for online content and demanded reforms to Australia’s intellectual property regime as part of the AUSFTA and following its re-election in the 2004 elections the Howard Government passed legislation providing a rigorous regime for ISPs and stronger enforcement measures for criminal copyright offences 107 It was noted that on the IPR issues USA corporate interests were preferred to Australian civil society interest groups, IP academics, or even the findings of the Government’s IP expert committees, such as the Intellectual Property and Competition Review and the Copyright Law Review Committee.108 Drahos and Henry109 and also Sainsbury110 warned of the incompatibility between the AUSFTA and the Australian Pharmaceutical Benefits Scheme. The Prime Minister was criticized for sacrificing local content rules dealing with culture in order to obtain 103 http://wikileaks.org/tpp/static/pdf/Wikileaks-secret-TPP-treaty-IP-chapter.pdf104 http://wikileaks.org/tpp/105 http://trademinister.gov.au/speeches/2008/081126_tpp.html.106 See: L. Weiss, E. Thurbon and J.Mathews,. How To Kill A Country: Australia’s Devastating

Trade Deal with the United States, Sydney, Allen & Unwin,, 2004; A. Capling, All The Way With The USA: Australia, The US and Free Trade, Sydney, University of New South Wales Press, 2005.

107 Ibid.108 Kathy Bowrey,. Law and Internet Cultures. Cambridge, Cambridge University Press,

2005, 188.109 P. Drahos and D. Henry, ‘The free trade agreement between Australia and the United

States. Undermines Australian public health and protects US interests in pharmaceuticals’ (2004) 328 BMJ 1271.

110 P. Sainsbury, ‘Australia–United States Free Trade Agreement and the Australian Pharmaceutical Benefits Scheme,’ (2004) 4 Yale Journal of Health Policy, Law and Ethics 387.

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greater access to the USA agricultural markets.111

These criticisms of the AUSFTA appeared to have been ignored by the Liberal Federal Government. Anne Capling reported that:

Australia’s trade negotiators knew how difficult a negotiation with the United States would be, but even they were shocked at the lousy deal Washington offered Australia. Yet their recommendation that the deal not be signed was overridden by the prime minister, who was clearly of the view that a bad deal was better than no deal at all.112

Rimmer suggest that Prime Minister John Howard was optimistic that the FTA would bring long–term benefits to Australia, especially in the areas of manufacturing, services, and investment, but that he was also keen to strengthen political and strategic ties with the USA especially given the close affinity between the Australian Liberal Party and the US Republicans and that he “was also perhaps fearful of antagonising a cherished ally if Australia rebuffed the agreement.”113 Rimmer observed that the “consultations and negotiations over the IP chapter were inadequate, lacking proper transparency, and accountability” and that the Australian Government was also singularly unimaginative in seeking to mitigate the harshest aspects of the AUSFTA failing to “protect the wider public interest in culture, education, and competition.”114 Prophetically he concluded that the AUSFTA “will undoubtedly constrain the policy options available in future law–making.”115

As was the case with the AUSFTA critics of the TPPA are reported as pointing out that the IP chapter will help “the multinational movie and music industries, software companies and pharmaceutical manufacturers to maintain and increase prices by reinforcing the rights of copyright and patent owners, clamping down on online piracy, and raising obstacles to the introduction of generic drugs and medicines.”116

111 ACIL Consulting,. A Bridge Too Far? An Australian Agricultural Perspective on the Australia/ United States Free Trade Area Idea, Canberra, Rural Industries Research And Development Corporation, 2003.

112 Capling, n.104 supra at 73 quoted in M. Rimmer, ‘Robbery Under Arms: Copyright under the Australia-United States Free Trade Agreement’ (2006) 11 First Monday. http://firstmonday.org/ojs/index.php/fm/article/view/1316/1236#author.

113 Ibid.114 Rimmer, n.104 supra.115 Ibid.116 P. Dorling, ‘Australians may pay the price in Trans-Pacific Partnership free trade

agreement’, Sydney Morning Herald, November 14, 2013 http://www.smh.com.au/federal-politics/political-news/australians-may-pay-the-price-in-transpacific-partnership-free-trade-agreement-20131113-2xh0m.html.(2)