Australasian Science: Australia's authority on science since 1938

A Critical Juncture for Intellectual Property

By Christoph Antons

Efforts to establish a global IP authority have provoked debate over where intellectual property becomes theft and piracy becomes community action.

In early July, the European Parliament voted against the ratification of the controversial Anti-Counterfeiting Trade Agreement (ACTA), which had triggered demonstrations in various countries. The treaty intensified a debate in the media about the reform of intellectual property in general and copyright in particular. This reform has also become a primary agenda of the Pirate Parties that recently entered several parliaments at local, state and European level.

This level of public attention and scrutiny is new for IP law, which was previously of concern to a relatively small circle of experts interested in IP and its contribution to innovation, culture and commerce. The relatively low public interest meant that IP industries for many years found it easy to lobby for new and stronger forms of protection.

The 1990s in particular were golden years. In 1994, the Agreement on Trade-Related Intellectual Property Rights (TRIPS) was included in the World Trade Organisation (WTO) agreement. The TRIPS agreement brought higher standards of protection and included, for the first time in international IP treaties, rules on the enforcement of IP rights.

Internet-related issues were included a little later in two treaties concluded under the auspices of the World Intellectual Property Organization in 1996. Since TRIPS was a requirement for WTO membership, a large number of developing countries were by the end of the 1990s reforming their colonial-era IP laws to gain the benefits of access to the markets of industrialised countries. In fact, a final group of least developed countries is still scheduled to come on board and to implement the TRIPS agreement from 2013.

Meanwhile, however, the raising of international IP standards has become more difficult. The future of the Doha round of WTO negotiations is, at the time of writing, uncertain. Those countries that desire a further strengthening of the IP system have attempted to include relevant provisions in bilateral and regional Free Trade Agreements.

However, after some success with this strategy, recent negotiations with key developing countries have been slow. The global financial crisis has led to a resurgence of developing countries that are strong in natural resources but less concerned about attracting foreign investment and less compromising on relevant IP policies than they once were.

Under the circumstances, ACTA constitutes an attempt to create a “coalition of the willing” to achieve higher standards in IP enforcement. That attempt, however, has encountered resistance from consumer organisations and internet activists, resulting in the rejection of ACTA in the European Parliament.

Industry representatives have put on a brave face hoping that six countries will ratify the agreement, the minimum number for it to come into force. Otherwise, the attention is now on the Trans-Pacific Partnership Agreement, which regarding IP and depending on its final content could soon face similar criticism as ACTA.

In Australia, the House of Representatives’ Joint Standing Committee on Treaties has recommended, among other things, to pay attention to what is happening in other jurisdictions, such as the EU and US. It is likely, therefore, that the European decision will impact on the debate here.

An important consideration may be that significant compromises were made with the EU during the negotiations that would continue to bind other ACTA signatory countries. Sensing that the discussion is at a critical juncture, the Joint Standing Committee further recommended waiting for a report of the Australian Law Reform Commission inquiring into Copyright and the Digital Economy.

The European decision also makes it less likely that the aim of exporting higher ACTA standards to developing countries can be achieved. New compromises will ultimately emerge from the current IP debates. What is clear, however, is that they involve now a much wider circle of stakeholders and diverging interests and that those lobbying for stronger IP rights affecting the internet are facing internet-savvy opponents that are making their presence felt in the political arena.

Professor Antons is a Chief Investigator with the ARC Centre of Excellence for Creative Industries and Innovation at Deakin University’s School of Law.

Professor Antons is a Chief Investigator with the ARC Centre of Excellence for Creative Industries and Innovation at Deakin University’s School of Law.