For example, in December 2010, the Australian Government’s Productivity Commission, which is the government’s independent research and advisory body on a range of economic, social and environmental issues affecting the welfare of Australians, released a report on the impact of bilateral and regional trade agreements. The report concluded:
The Commission considers that Australia should not generally seek to include IP provisions in further BRTAs, and that any IP provisions that are proposed for a particular agreement should only be included after an economic assessment of the impacts, including on consumers, in Australia and partner countries. To safeguard against the prospect that acceptance of â€˜negative sum game’ proposals, the assessment would need to find that implementing the provisions would likely generate overall net benefits for members of the agreement.
In fact, the report was critical of the inclusion of IP in prior agreements as well:
The Commission is not convinced, however, that the approach adopted by Australia in relation to IP in trade agreements has always been in the best interests of either Australia or (most of) its trading partners. Among other things, there does not appear to have been any economic analysis of the specific provisions in AUSFTA undertaken prior to the finalisation of negotiations, nor incorporated in the government’s supporting documentation to the parliament. As noted above, the AUSFTA changes to copyright imposed net costs on Australia, and extending these changes to other countries would be expected to impose net costs on them, principally to the benefit of third parties.
Similar views were expressed in New Zealand in December 2010, when a leaked government document on the Trans Pacific Partnership expressed concern with the shift toward international pressure on IP with limited consideration of the domestic effects:
Traditionally, international intellectual property treaties have been based on two basic rules: the provision of substantive minima obligations and national treatment (see for example the Paris and Berne Conventions). The substantive minima have been periodically amended, mostly to require greater or different levels of protection. While traditionally, recognising the principles of self determination and diversity, a large part of law making would be left to national laws, stronger levels of international IP protection coupled with a larger coverage of issues is increasingly limiting the capacity of states to determine the optimal level and form of intellectual property protection, hence limiting room for cultural and economic difference and maximisation of social utility.
These developments are underpinned by an increasing pressure from rights holders to internationalise a larger array of issues and find international solutions to issues that have only had limited consideration at the national level. This is particularly true for the area of copyright, where rights holders have been seeking the adoption of more intrusive international rules with respect to a range of copyright issues at an early stage of norm development.
While there may be good arguments for an early and more rapid development of international solutions, such approach bears the risk of being premature, lacking evidence at the national level that would suggest a desirable international norm.
The Committee calls on the Government of Canada to ensure that domestic copyright policies are not part of any present or future trade negotiations; that Canada’s commitments to the implementation of the Anti-Counterfeiting Trade Agreement (ACTA) are limited to the agreement’s focus on combating international counterfeiting and commercial piracy efforts; and that the Government of Canada retains the right to maintain domestic copyright policies that have been developed within the framework of its commitments to the World Intellectual Property Organization and the Berne Convention.
The trend is global: in the United States, Senator Ron Wyden has proposed legislative language requiring Congressional approval of ACTA and requiring disclosure of the TPP intellectual property chapter. ACTA countries such as Mexico and Switzerland have not signed the agreement with a Mexican Senate resolution opposed to ACTA and the Swiss indicating that they will forgo signing for the moment. Most recently, the TPP negotiations included openly critical comments from several delegations who are increasingly opposed to the U.S.-imposed IP rules within the agreement.
The implications of this backlash is significant as it points to increasing discomfort with the inclusion of intellectual property chapters within large scale trade agreements. Indeed, intellectual property is invariably one of the major stumbling blocks within these agreements – whether the inclusion of the Internet provisions in ACTA, the TPP IP chapter, and the Canada-European Union Trade Agreement which is facing a major backlash over the IP rules. Note that these are not “anti-IP countries” but rather countries that recognize that trade agreements frequently do not yield intellectual property rules that serve their national interest. The development of global IP norms is important, but it belongs in open, transparent, inclusive multilateral institutions, not secretive trade deals like ACTA, the TPP, and CETA. meta http-equiv=