Yesterday I noted that DFAT is asking for submissions on whether Australia should join negotiations on plurilateral anti-counterfeiting treaty (known at the moment as Anti-Counterfeiting Trade Agreement, although I’m not clear why – does putting ‘trade’ in it make it more attractive?).

I was talking to a couple of people yesterday about whether Australia should. Here are my initial thoughts, although they’re by no means fully formed:

  1. In general, it is not obvious that international standards need to be raised via any such Agreement. To the extent that it is thought that substantive rules in the area are required, I think it might be better to focus on achieving compliance with the TRIPS standards. To the extent that what is sought is better mechanisms for cooperation between countries, such issues are likely better handled via specialist bodies like the World Customs Organization. A proliferation of bodies and instruments is unlikely to be helpful for anyone.
  2. However, Australia should be involved in any negotiations (even if we do not end up signing it) – because she should have a say on any proposed international standards on anti-counterfeiting rules/IP standards
  3. It is important to ensure (a) that any standards negotiated preserve sovereign rights to manage domestic affairs and priorities; (b) exceptions and the right to use them are preserved, (c) that digital issues of downloading etc are kept out (the WIPO Copyright Treaty deals with these in more than sufficient detail).

Of course, the concern is that while the treaty will be ‘voluntary’ (as reported in IP Watch), it will be included in all the future US FTAs as something that FTA partners must sign up to (note to developing countries: perhaps be part of these negotiations to protect future interests?). It also isn’t necessarily the case that Australia, having already signed an FTA, is safe from such pressure. Remember that the Australia-US Free Trade Agreement requires yearly meetings, and that pressure may be brought to bear in any such meetings on Australia to sign up to any future IP multilateral or plurilateral agreements.