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What the new TPP means for Aussie IP

What the new TPP means for Aussie IP

The new deal is likely to put to rest concerns about certain IP provisions outlined in the original agreement

Eleven countries aiming to forge an Asia Pacific trade pact after the United States pulled out of an earlier version will sign an agreement in Chile in March.  

The move comes after, in one of his first acts as US president in January 2017, Donald Trump pulled the United States out of the original 12-nation Trans-Pacific Partnership (TPP), which was set to include Australia along with 11 other nations bordering the Pacific Ocean.  

“The TPP will eliminate more than 98 per cent of tariffs in a trade zone with a combined GDP of $13.7 trillion,” Australia’s Minister for Trade, Tourism and Investment, Steven Ciobo, said.  

“The agreement will deliver 18 new free trade agreements between the TPP parties. For Australia that means new trade agreements with Canada and Mexico and greater market access to Japan, Chile, Singapore, Malaysia, Vietnam and Brunei."

Speaking at the World Economic Forum in Davos, Switzerland, Canada's Prime Minister Justin Trudeau called the agreement the "right deal".

Japanese Economy Minister Toshimitsu Motegi said the new Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), or TPP-11, would be an "engine to overcome protectionism" emerging in parts of the world.

Ministers from the 11 countries, including Japan, Australia and Canada, agreed in November on core elements to move ahead without the United States, but demands by countries including Canada for measures to ensure the deal protects jobs blocked a final agreement.

The changes are likely to put to rest much of the unease that members of the local tech sector may have been harbouring over the original agreement's trans-border intellectual property (IP) provisions.

Concerns about some of the IP provisions in the trade agreement in its initial form were raised on numerous occasions by industry experts during a series of senate inquiry hearings into the TPP, largely held in 2016.       

Among the concerns raised were questions about how certain provisions would affect the freedom of Australian partners to develop software solutions for end clients.  

Jack Burton, chairman of the local industry body for open source software companies in Australia, Open Source Industry Australia, for example, raised concerns during a parliamentary hearing in October 2016 over certain provisions in the IP chapter of the original agreement, prior to the changes struck in November last year.  

“Looking at Article 18.80, which relates to government use of software, the wording of that article effectively prohibits the Commonwealth government from using software that is already in the public domain,” Burton told members of the Joint Standing Committee on Treaties.

“We have members in our industry who make their money not from selling software but from selling services around software that is open source and in some cases that has entered the public domain by explicit declaration of the author.

“If, under the TPP the Commonwealth government is prohibited from using public domain software, our members obviously cannot provide services, be they training services, be they support services, be they implementation or be they consulting services around that software that is in the public domain. That would be one specific example.

Elements of the particular example raised by Burton, along with several specific points relating to IP provisions were suspended from the agreement in November last year, as the current version of the multinational pact took shape.  

Parts of Article 18.8, as noted by Burton, were ultimately suspended from the final document, as were articles relating to patent subject matter, technological protection measures, terms of protection for copyright and related rights, and patent term adjustment for unreasonable curtailment – among others.

As a result, the final version of the agreement effectively removes many of the questions that would likely have been hanging over the collective head of local independent software vendors (ISVs) and developers – along with other segments of the local tech sector

According to Ciobo, the text of the new agreement is now undergoing a legal review and translation and will be made public on a date to be agreed by all parties.

"This outcome reaffirms the CPTPP countries' collective commitment towards greater trade liberalisation and regional integration," Singapore's Ministry of Trade and Industry said in a statement.

Australian Prime Minister Malcolm Turnbull said last week the new agreement would leave a door open for eventual US participation.

(With Reuters - by Kaori Kaneko and Takashi Umekawa; additional reporting by Jack Kim, David Ljunggren and Leah Schnurr; Writing by Linda Sieg; Editing by Steve Orlofsky and James Dalgleish)

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Tags AustraliaIPintellectual propertyISVsTrans-Pacific Partnership (TPP)TPPSteven Ciobo

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