LawFont.com

I blogged briefly yesterday about the release of the TPM Inquiry Report; it’s been attracting some international interest, and you can see my previous post for links to that commentary.

I’m still trying to digest the effect of the report. But the AFR has a story today (sorry, subscription only) noting that the report may well lead to conflict with the US. And here’s the kicker: our Trade Minister is apparently meeting US trade officials in Washington DC next week to review the first 15 months of the FTA.

What’s the bet he gets a bit of a pounding on the Report? But what to do? The dictates of Australian politics, and international realpolitik may be in conflict here.

From an Australian political perspective, it would be difficult, I would think, to simply reject the recommendations of a properly convened Parliamentary Committee which has considered Australia’s interests. But from a realpolitik perspective, the US is not going to be happy if Australia veers too far from America’s preferred interpretation. Not just because they care about the Australian market. Because they will be worried about the precedent it would set for the many other countries in the world who are in (or negotiating) FTAs with identical provisions. (Oh, and on this, note the EFF commentary from yesterday).

Minister Vaile, one thing you should bear in mind. The view of the US Trade Representative on US IP law often goes beyond what US IP law actually provides. US courts have interpreted, for example, the DMCA to require a link between copyright infringement and access control measures: a fact that is not reflected in the USFTA texts. US courts have rejected protection for all temporary copies within a computer’s memory – a fact not reflected in the USFTA texts. My past conversations with US copyright law experts have constantly underlined the fact that the view pushed by the USTR is not an accurate representation of developing US law.

What about that mum-and-dad issue of region-coding? Well, it’s possible that Minister Vaile could get pounded on the idea of excepting region-coding TPMs from protection (recommendation 4 in the Report). In this context, it’s also worth pointing out that, on the region-coding thing, Singapore actually negotiated a specific exception to allow circumvention to overcome region coding. So clearly this is not essential to US interests.

While it is important that Australia not go off on a complete frolic, it is also important that Australia interpret the FTA in accordance with its own laws, legal structure, and interests. I don’t envy the Minister. But I would reiterate my submission to the Committee – in international legal terms, we do have some freedom here to interpret the treaty in accordance with our interests. That is, after all, the reason we negotiated a delay into the FTA text – in order to do so.