US certification provisions in the TPP would create copyright vassal states

The Pirate Party denounces any attempts to include certification provisions in the highly secretive Trans-Pacific Partnership Agreement (TPP). The United States, one of twelve negotiating nations including Australia, may be given the power to opt-out of the Agreement if countries do not implement the TPP according to the standards of the United States Trade Representative. This has been used by the United States to pressure other countries into adopting its interpretation of trade agreements[1].

These provisions give an inordinate amount of leverage to the US Government to pressure treaty partners, such as Australia, to alter and adopt laws that go beyond the negotiated text of the treaty. In practice this could result in a situation where the US Government and its advisors are approving, or even drafting, Australian laws to ensure they comply with the interests and expectations of the United States.

Brendan Molloy, President of the Pirate Party, commented: “This is an egregious overreach. I daresay that any Australian government that signs such an unbalanced agreement, which puts such an unequal share of power in the hands of a foreign entity, is guilty of betraying the interests of the Australian people. A partnership where all parties do not have equal power is not a partnership. By signing such a fundamentally unbalanced agreement, Australia would be granting the US significant control of our sovereignty, making us effectively a vassal of the United States.

“The United States, as a major exporter of intellectual property, will naturally push for an interpretation that favours greater protection of their intellectual property rights. This will significantly hamper reform of domestic intellectual property laws which have already adopted many of the stricter aspects of the US system without introducing any of the flexibility, such as a fair use exception for copyright.

“The Pirate Party insists that all treaties be negotiated transparently, without the levels of secrecy that have thus far defined the TPP negotiations. We call upon the Australian Government to reject any attempts to force a particular nation’s interpretation of the TPP and other agreements. If the provisions are so ambiguous as to allow multiple and conflicting interpretations, then they are clearly not refined enough. Public scrutiny and criticism of the text prior to it being signed would go a long way towards avoiding such pitfalls. Genuine public consultation would go even further.”

Leaks of draft chapters indicate that the TPP will have many controversial provisions, including harsh patent and copyright amendments which may drive up the costs of medicine and force Internet service providers to monitor customers’ Internet usage[2]. Perhaps the most controversial draft provisions relate to investor-state dispute settlement (ISDS) which provide international investors and corporations with the power to challenge Australian laws in an international tribunal. This can allow corporations to sue for lost profits should a law be deemed to impact their bottom line, and completely bypasses Australia’s domestic legal system. Domestic businesses would not be given the same rights, except against foreign signatory governments.

The secrecy of the negotiations allows these provisions to be determined with minimal public consultation. The cost of granting such significant new powers to multinational corporations would be so high that any government proposing them would face enormous public opposition. United States Senator Elizabeth Warren has stated that “If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States.”[3] The Pirate Party says it should not be the policy of Australia either.

The Pirate Party’s policy seeks to ensure that treaty negotiations are subject to oversight and public participation, is opposed to ISDS provisions, and seeks to increase Parliamentary oversight and consent in treaty making[4].

[1] https://www.eff.org/deeplinks/2014/08/certification-allows-us-trade-negotiators-rewrite-tpps-copyright-rules

[2] https://wikileaks.org/tpp/static/pdf/Wikileaks-secret-TPP-treaty-IP-chapter.pdf

[3] https://www.techdirt.com/articles/20130613/12035523456/senator-warren-if-tpp-transparency-would-lead-to-public-opposition-then-policy-is-wrong.shtml

[4] https://pirateparty.org.au/wiki/Policies/Foreign_Policy_and_Treaty_Making