IP and Free Trade Agreements

The era of bilateral and smaller multilateral trade agreements culminated on 5 October 2015 with the signing of the 12-nation Trans-Pacific Partnership, covering 40 per cent global economy. Like all trade deals, the TPP is primarily a political deal negotiated by politicians, and is seen as an attempt by the US and Japan to set up a Pacific rim economic zone that doesn’t include the world’s second largest economy, China. Intellectual property was one of the sticking points in the negotiations for this agreement, along with the time period for data lock-up for biologic drugs and tobacco and public health issues, among others. In regard to the inclusion of intellectual property in free trade agreements, the Australian Competition Policy Review (the Harper Review) issued its Final Report in March 2015. Recommendation 6 of that Report was an Intellectual property review by the Productivity Commission focusing on:
• competition policy issues in intellectual property arising from new developments in technology and markets; and
• the principles underpinning the inclusion of intellectual property provisions in international trade agreements.

As we reported on the 20 August 2015, the Treasurer and the Minister for Small Business asked the Productivity Commission to examine Australia’s intellectual property system, in light of the shift towards an innovation economy.

See: http://frankehyland.blogspot.com.au/2015/08/productivity-commission-to-look-at-ip.html

Economically, Australia needs to shift away from its heavy reliance on resources and primary industry. Business leaders and politicians alike are calling for Australia to focus on innovation and technology development in a number of different areas. This shift to innovation as a driving force in the economy is very much based on intellectual property. The Productivity Commission’s recommendations will need to factor in this shift to an innovation economy in its review.

The Commission will also need to consider the fact that Australia is currently party to 10 bilateral or plurilateral trade agreements which include IP chapters. Recently, Australia has recently signed Free Trade Agreements with Korea, Japan and China. In regards to IP protection in their respective countries, Korea, Japan and China have all agreed to provide Australian nationals with equally favourable treatment in relation to IP protection and enforcement. The IP chapter of the Trans Pacific Partnership will also need to be taken into consideration when this agreement is ratified by all signature countries. Free trade agreements largely designed to “reduce or eliminate tariffs and other barriers to trade”. While these free trade agreements are designed to increase trade between the signatory countries,  the Productivity Commission reported in 2010 that it had found 'little evidence from business to indicate that bilateral agreements to date have provided substantial commercial benefits' and that the 'increase in national income from preferential agreements is likely to be modest'. Regardless of whatever economic benefit Australia has or is likely to gain from the free trade agreements it is party to, the Productivity Commission will have to take into account Australia’s obligations under these free trade agreements in its review of Australia’s intellectual property system.

Further details can be found in the link to our full article below.

https://www.dropbox.com/s/vuoknbhr4fj8eaf/Article%20-%20IP%20and%20free%20trade%20agreements_full%20article.pdf?dl=0

by Sarah Herbert