As the digital shift continues we should pause to consider what has already been lost during the transition and what could yet be lost as future trade agreements threaten to further erode personal ownership rights and usage freedoms regarding digital content.

Many Australians will spend their Christmas holidays reading. If they’re using a Kindle ereader then they’re probably unaware that they don’t own any of the books they’ve purchased from Amazon.com because the Kindle Store Terms of Use states:

Kindle Content is licensed, not sold, to you by the Content Provider.

Similar restrictions apply to most content sold digitally, with common terms of use including prohibition on resale, barring use of the content outside the geographic region it was purchased and no liability clauses if content that you’ve purchased is withdrawn eg the Apple iTunes Store terms:

Some iTunes Eligible Content that you previously purchased may not be available for subsequent download at any given time, and Apple shall have no liability to you in such event.

The Trans Pacific Partnership Agreement (TPP) free trade agreement is currently a hot topic in the news as participating countries hope negotiations will be concluded by the end of the year. The Department of Foreign Affairs and Trade argues that Australia’s participation in the TPP is beneficial to our export industries because they would:

Benefit from effective and balanced intellectual property protection and enforcement regimes here and overseas.

However lobby groups are warning that if Australia signs up to the TPP free trade agreement it may cement AUSFTA or extend copyright provisions even further, risking stifling innovation and hindering our ability to reform our law to keep pace with technological change.

A 2010 Productivity Commission report on the economic effects of bilateral and regional trade agreements concluded that while there are possible benefits in some areas of the Australia-US free trade agreement (AUSFTA):

Extension of copyright provisions (in particular, for existing works) has clearly imposed a net cost on the Australian economy.

Bryan Clarke from the Australia's Chamber of Commerce and Industry told ABC’s Lateline that:

If they [Abbott Government] approach free trade agreements in a way which trades off things which are not in Australia's interests, then overall they may not be in Australia's benefit and may not be worth the negotiating time.

Associate Professor Kimberlee Weatherall from the University of Sydney school of Law has analysed the leaked 30 August 2013 text of the TPP Intellectual Property (IP) chapter and declared it “radically unbalanced” because:

There are still far too few safeguards for defendants and third parties in the context of IP litigation … There is a great deal of potential in this text for vastly overreaching claims by IP owners.

Nobel prize winning economist and former senior vice president and chief economist of the World Bank, Professor Joseph Stiglitz advised TPP negotiators that they should resist moves that:

Increase damages for infringements of patents and copyrights, narrow copyright exceptions requiring life+ 70 years of copyright protection, mandate excessive enforcement measures for digital information, and otherwise restrict access to knowledge.

DFAT claims that the TPP:

Provides an important opportunity to achieve a more consistent approach to intellectual property protection and enforcement across the region.

However Professor Stiglitz warns that this harmonisation of IP law across the countries which are parties to the TPP will cause harm because instead of deciding which TPP country has the most balanced IP regulation and making other countries consistent with that, the leaked draft:

Proposes to freeze into a binding trade agreement many of the worst features of the worst laws in the TPP countries, making needed reforms extremely difficult if not impossible.

A few days ago Australian Greens and Labor Senators combined to pass a motion attempting to compel the Abbott Government to make the final text of the TPPA publically available before being signed off by Cabinet. But to date the government has refused to comply.