The TPPA is only part of the story

Posted on: October 11, 2015 - 22:18 By: dave

In reading through the patent-specific parts of the leaked TPPA IP Chapter to undertake yesterday's analysis, I noticed something the implications of which concern me greatly.

I reproduce Article QQ.A.8 below for your reference (original is on page 4 of the leaked chapter):

Article QQ.A.8: {International Agreements}

1. Each Party affirms that it has ratified or acceded to the following agreements:
    (a) Patent Cooperation Treaty (1979);
    (b) Paris Convention for the Protection of Industrial Property (1967); and
    (c) Berne Convention for the Protection of Literary and Artistic Works (1971).

2. Each Party shall ratify or accede to each of the following agreements, where it is not already a Party to such agreement, by the date of entry into force of this Agreement forthe Party concerned:
    (a) Protocol Relating to the Madrid Agreement Concerning the InternationalRegistration of Marks (1989);   
    (b) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
    (c) International Convention for the Protection of New Varieties of Plants(1991) (UPOV Convention);
    (d) Singapore Treaty on the Law of Trademarks (2006);
    (e) WIPO Copyright Treaty (1996); and
    (f) WIPO Performances and Phonograms Treaty (1996)

So, by signing the TPPA, we are implicitly accepting the terms of these 9 prior agreements.

I presume similar references to other prior agreements exist in other sections of the TPPA text (which, of course, we haven't seen): this problem is likely to be magnified throughout the agreement.

What relevant requirements are contained in those agreements, which we "shall ratify or accede to"? Has NZ previously been a party to these? How does ratifying or acceding to them force us to change our laws, policies, jurisdictions, practices or expectations?

Nevermind how appalled I am by the secrecy of this entire TPPA process. In this case, there's a more important question: Is it conceivable that our handful of negotiators - the only people in NZ who had access to this text - know all of these agreements and their legal ramifications?

By all accounts, our negotiators are clever, dedicated civil servants, but I don't think it is conceivable that they really understand the technical implications of the TPPA text, much less a deep understanding of all these ancilliary agreements. I don't think any small group of people possibly could.

To me this demonstrates that - like a software user who just wants to run a piece of software to solve a problem - our Government is hell-bent on clicking "I ACCEPT" on the mother of all End User License Agreements: the TPPA.

That thought makes me feel sick to my stomach, and should terrify you, too.

This isn't just a piece of software we're talking about... with your precious computer, files, music collections, and family photo galleries hanging in the breach. This is our homes, our nation, our future, and that of our children. I think there's more than enough cause to get very very angry about this. We are not going to let this happen.

I suggest that any statements made by Tim Groser or anyone else in Government about the various gains and concessions in the agreement should be taken with a large amount of salt. Remember, our compliance with the TPPA (and all its conditions) isn't judged by us here in NZ - it's judged by by the US.