Time to walk away from the TPP?

I wrote an NBR opinion piece in December last year outlining some of the concerns with the Trans-Pacific Partnership Agreement negotiations and, more specifically, significant and troubling pressure from the United States on our government to overturn New Zealand’s IP laws (read Groser trades away tech to save agriculture).

As a quick recap, the US government has spent recent times applying significant and sustained pressure on countries like New Zealand to adopt US-style IP laws and penalties.

If they get their way? Think internet disconnections because your kid listened to music online, tech companies succeeding based on the strength of their lawyers rather than their innovations and Dotcom-style raids being the norm for what have always been considered civil matters here.

However, what bothers many in the IT community more is the pressure the US is applying around software patents. Our government has spent the last few years reviewing the Patents Act of 1953.

With the support of what certainly appears to be the vast majority of IT professionals and the country’s largest software houses such as Orion Health and Jade Corporation, the Commerce Select Committee – made up of both sides of the House – unanimously agreed to remove patentability of software.

Many in the IT community see software patents as a bad thing, stifling innovation rather than supporting it and protecting mature technology markets (such as that of the US) at the expense of rapidly developing technology export markets such as New Zealand.

Technologists also see copyright as a far more appropriate means of protecting software and were, by and large, greatly relieved when our legislators agreed.

US stepped up pressure
That was, until the US stepped up the pressure some more.

Rather than respecting the sovereignty of New Zealand to make its own law around intellectual property, the US appears to be pushing very hard, for example, to kill the new Patents Bill, despite it coming about at the end of a very democratic and transparent select committee process.

And what is even more worrying is our government appears to have, until now at least, kept the door open for the Americans to do just that.

Despite assurances previously that the bill was going to be enshrined in law promptly, and the fact that the select committee reported back more than two years ago in March 2010, the Patents Bill has now been pushed right down the order paper, now sitting at #53 out of 59 Bills before Parliament.

There might be some progress on this front, however.

During a presentation to the Institute of IT Professionals this week, ICT Minister Amy Adams told the packed audience that this was about to change and the bill wouldn’t be languishing for much longer – with the government understanding that the delay was causing the industry some angst.

Stay tuned on this one.

The TPPA
The Trans Pacific Partnership is a trade agreement being negotiated by New Zealand and eight other countries, included the United States. This is expected to increase by two with the likely addition of Canada and Mexico.

There are almost definitely some good things in the agreement, but the cost to New Zealand’s tech and online community could be high if it turns out as bad as it currently looks.

The more cynical among us might be forgiven for suspecting a link between the TPPA negotiations – with the US pushing hard for patentability of software, medical procedures and medical diagnosis – and the stalling of the Patents Bill, which in its current form would specifically exclude these categories from patentability.

Time will tell on that one, although the minister’s comments were reassuring.

Previous attempts
The TPPA is not the first time we have seen massive pressure around intellectual property from the US.

The last attempt was through an agreement called ACTA, or Anti-Counterfeiting Trade Agreement. The most extreme clauses of that agreement were watered down in the final draft.

However, we’re now seeing their attempted and somewhat unwelcome return in TPPA.

There was also SOPA and PIPA in the US, but I won’t go into them.

And here I was thinking it was geeks who loved their acronyms – it certainly seems trade negotiators and lawmakers do, too!

Secrecy around both agreements
One of the common themes across both trade negotiations is the unprecedented level of secrecy and the big push to exclude the public.

The Office of the US Trade Representative is even said to be pushing to stop the previous ACTA agreement from going before the US Congress for ratification, ratifying by executive order instead.

Many in Congress are understandably concerned about the undemocratic nature of an agreement negotiated in secret being implemented without even the most basic protection – Congressional approval.

Although it is becoming clear why some seem to be working so hard to keep these agreements from the public.

Protests and controversy
ACTA was signed in October 2011 but has had a very rocky road since negotiations concluded. In fact, last week it might well have had a fatal blow.

Even with a watered-down IP section, it was met with outrage and mass protests across Europe and the rest of the world.

Last week the European Parliament effectively ditched it – choosing not to ratify by a somewhat unprecedented 478 votes against and just 39 for.

I suspect 39 political careers just came to a premature end.

It is hard to imagine it being ratified by other countries after such a resounding rejection from Europe and, indeed, Australia is already making noises about not ratifying either.

Impact on the current TPPA negotiations
This huge defeat for a watered down ACTA has to give the TPPA negotiators, and the politicians directing them, reason to pause.

The message is clear. The sort of innovation-crushing and freedom limiting clauses that seem to be characterising these agreements simply aren’t going to fly with the public.

From a political standpoint, politicians the world over must now realise they foist these types of agreements on the public at their peril.

Elections are won and lost on the margins, and enough people of all political leanings feel sufficiently strongly about this to make a very real difference to electoral outcomes worldwide.

Local campaign to raise awareness
Last week a diverse range of organisations led by Internet New Zealand and including major ICT groups such as the Institute of IT Professionals (formerly the NZ Computer Society), TUANZ and Kiwi tech company group NZRise, through to household names such as Trade Me and Consumer, launched the Fair Deal campaign to raise awareness of many of these issues.

The concerns are vast and broad. Even the country’s mild-mannered librarians have spoken up, with the Library and Information Association of NZ joining the campaign, as have the Foundation of the Blind, who are deeply concerned about the impact TPPA might have on their members’ ability to use screen readers legally, potentially cutting off blind people’s access to many eBooks.

Fair Deal isn’t about trying to kill TPPA (although there may be no other option), it is about ensuring that if there is going to be an agreement, it doesn’t sell the tech sector and this massive economic growth potential down the river – along with internet users and others.

And it is about raising public awareness of the consequences of doing just that – consequences that far outweigh any perceived gain in the view of those taking part.

Is there a way forward for TPPA?
Maybe. But if that way forward involves stifling Kiwi innovation and crippling changes to IP law then we all lose, even with a few token agriculture concessions.

If the Americans won’t budge on the IP chapter, it is time for our government to just walk away from TPPA and let our sector get on with innovating.

Paul Matthews is chief executive of the Institute of IT Professionals NZ.