[LINK] Re: Impacts of the Free Trade Agreement Ch. 17 (IP)

[Chirgwin, Richard]

> -----Original Message-----
> From: Roger Clarke [mailto:Roger.Clarke at xamax.com.au] 
> Sent: Tuesday, March 16, 2004 8:54 AM
> To: link at anu.edu.au
> Subject: [LINK] Re: Impacts of the Free Trade Agreement Ch. 17 (IP)
> 
> 
> 
> Roger wrote:
> >I've flung together a first-cut analysis, at:
> >http://www.anu.edu.au/people/Roger.Clarke/II/FTA17.html
> 
> 
> A correspondent replied:
> 
> >We are looking for specific examples of how Australian research and
> >innovation might be affected by signing up to an 
> intellectual property
> >regime which benefits large corporations at the expense of 
> others (small
> >innovative companies, individual researchers and students, 
> universities
> >and noncommercial research institutes, creators and artists 
> who require
> >a public domain of information to draw from, information consumers,
> >libraries etc.).
> 
> >The Committees, Joint and Senate, which will investigate the FTA will
> >be interested in data and some examples to support argument. This is
> >difficult to find for both the supporters of and the 
> opposition to the
> >FTA.
> 
> Can anyone provide anecdotes, f'r'instances or leads to them, that 
> put some flesh onto the abstract systemic arguments I'm making in my 
> paper?
> 
> This RFI may need to be flicked onto some lists where real hardware 
> and software developers hang out, particularly open source people, 
> but not only.

Please nobody hit me for this ... but: you'll have a challenge getting any
anti-FTA commentary from the peak bodies of industries like electronics
because they're already more than a little beholden to Silicon Valley. You
can't make electronics without America, so you don't dump on America. And
frankly on this side of the Pacific there are plenty of companies whose
fondest hope is that they might learn to game the US patent system, instead
of being stuck in the backwaters...

There are two concrete issues which I have written about on CommsWorld:
"harmonisation" with US regulation is stupid, because it's a moving target.
Two concrete examples of this:
- we're committed to an unbundling regime in the FTA which the US Federal
Court has just said is illegal
- we're committed to harmonising with a patent regime which courts are
beginning to unravel.

In both cases the negotiators needed only to look at long-term action in the
courts to ask "do we want to harmonise with a chimera?" but they didn't...

Also, the FTA quite explicitly seeks to reinstate import monopolies. This
goes against the long practise of the ACCC - for example in relation to CDs
and books.

The "import monopoly" (that is, we can take grey marketers to court) is
particularly dear to the heart of the software industry, because it protects
a price control right which is anathema to the ACCC.

By my reading, the relevant passages in the FTA are also an attempt to sneak
other import monopolies into law "under the radar", so to speak. It says a
patent holder has the right to prevent importation of a patented product to
the territories covered by the FTA. That stretches to cover "a product
produced by a patented process" - which is a very broad canvas indeed. 

Stop me if I'm wrong; but the pretence that "grey marketing" is illegal was
generally resisted by Australian regulation?

Richard C