Submission on Trans-Pacific Partnership

This is a draft. Not to be quoted without permission

Status of the Submission

As of August 15 the Department of Foreign Affairs and Trade of the Commonwealth of Australia stated that it "continues to welcome public submissions and comments on Australia's participation in TPP negotiations:

This submission is made on the basis of this invitation by Linux Users of Victoria ("the Association"), an incorporated association in the state of Victoria ASN A0040056C. The association was established in 1994, making it one of the world's oldest Linux user groups. It has a membership of 1454 operating system users and developers with chapters in Melbourne, Geelong, Ballarat, Shepparton, and the La Trobe Valley.

This submission is limited to those interests which are part of the organisation's objectives. It is released under Creative Commons Attribution-ShareAlike 3.0 Australia license (CC-BY-SA-3.0-AU)[1].

This submission was written by Lev Lafayette for the Association

General Principles

The Association expresses general support to the principle of the internationalisation of matters of economic management and governance. After all, the operating system which we advocate is internationally distributed and is the result of international collaboration. The development of Linux is hampered in environments where there is a
communications barrier or other form of tariff between jurisdictions.

However, we express some concern with the proposals to establish a common framework for intellectual property. We cannot support any intellectual property framework which reduces the free transfer of information between people, such as software patents, for example. These act as a damaging barrier to technological development and productivity and, indeed, would be contrary to the TPPs stated objects to "enhance trade and investment among the TPP partner countries, to promote innovation, economic growth and development, and to support the creation and retention of jobs." [2]

The Association, as an organisation that supports 'open source' disclosure, condemns and abhors the secrecy surrounding the text of the treaty. An international treaty of such expansive scope and on such controversial subjects deserves a proper consideration of the public sphere. We applaud the activity of Wikileaks which has published several leaked documents since 2013 on the TPP, carrying out what our democratic governments should be doing.

General Intellectual Property

Linux Users of Victoria rejects the contents various proposals in the leaked TPP chapter concerning intellectual property provisions [3]. Section references in this submissions will refer to that document.

The Association notes that Australia is already subject to various IP treaties [4] and the addition of a regional agreement will seriously restrict our capacity to engage with other trading partners (notably India, China, the European Union) and can only serve the interests of those who prefer an even more restrictive intellectual property regime.

Such monopolistic and monopsonistic orientations will be damaging to innovation, competition, employment, and aggregate wealth, as well established in positive economics.

Software Patents

The Association in particular rejects the establishment of any patents in software (c.f., Article QQ.E.1 of the TPP). Patents are usually applied to the physical embodiment of processes. The main problem with software patents is that they restrict, in software, the implementation of an process, method, or idea. As a result patents attenuate innovation in software. Particular examples (compression algorithms, register allocation, memory checking etc) of such attenuation have been provided have been provided in the past by the Association [5]. Software patents require developers to conduct patent searches to determine whether or not an idea has already been patented.

Further, as Ben Klemen's has pointed out following Church and Turing, that there is no clear boundary between mathematical algorithms and software. If mathematical equations and laws of nature already exist, then no idea
expressed in software, should be subject to a patent as they represent a discovery rather than an invention. Conversely however, state machines themselves are patentable [6].

Other Patent Issues

The Association completely rejects the proposals in QQ.E.3 which suggest that each Party shall provide that a patent may be cancelled, revoked or nullified only on grounds that would have justified a refusal to grant the patent. This limits the capacity of a party to reconsider the basis of patent grants, thus paralysing the possibility of proper legal development.

The Association supports the proposal in QQ.E.4 which would allow third persons to oppose the grant of a patent, before or after the grant. We recognise that public patent offices are both often overwhelmed with applications and are often unable to make a fully considered assessment of an application in increasingly complex technologies. Third party evaluation establishes a kind of peer review which will assist consideration. Further the Association supports the proposal in QQ.E.5ter which would grant experimental use of a patent for purposes relating to the subject matter of a patented invention.

Copyright Term

In regards to the proposal in QQ.G.6 the Association notes variable attempts to provide standard lengthy copyright right terms, from life plus seventy years for natural persons up to 125 years for corporate persons. The Association notes that this a continuation of extending copyright monopolies contrary to decreasing knowledge utility and increasingly knowledge development and complexity, thus acting as a brake on further knowledge utility and development. The Association notes that the Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS), though not included, requires a copyright length of at least 50 years after death.

Whilst the Association strongly opposes any attempt to extend copyright terms beyond existing international agreements, as an evidence-based organisation attention is drawn to the quantified optimal copyright term via empirical parameters is 15 years [7]. Any argument to extend copyright beyond this period is clearly a political decision rather than an economic one.

Parallel Imports and Exports

Parallel importation and exports (c.f., QQ.E.X, QQ.G.4) restrict the ability of consumers to exercise sovereignty by artificially restricting the availability of a good or service that is otherwise legitimate. Such restrictions are an anti-trading measure that benefit the sellers of such goods and service by artifically engaging in international market segmentation of price discrimination with a monopolistic orientation. The Australian market is a particular example of a relatively small consumer market which does not benefit from the economies of scale and competition
available in the larger economies and as a result has a relatively oligopolistic market structure in many industries. In the past, in recognition of this situation, the Australian government has removed parallel import restrictions on most products, including software [8].


The Association opposes all attemps to assert criminal procedures (QQ.H.7) penalties to be applied in cases of willful trademark counterfeiting or copyright or related rights. It is the opinion of the Association that where such breaches are alleged that they be carried out through civil procedure instead.

Right of Reproduction

The proposals regarding Right of Reproduction (QQ.G.1) are indicative of a certain level of technical ignorance. The proposal that copyright holders have the right to prohibit all reproductions of their "in any manner of form" does not accord traditional "fair use" principles and overlooks that creating temporary copies is necessary for ordinary Internet use.

International Exhaustion of Rights

The Association agrees with a proposal for an international exhaustion of intellectual property rights (QQ.A.12) and the passing of information to the public domain, the rich and historical source of culture for the production of new cultural artefacts. Once items are placed in the public domain then it should be explicitly stated that restricted rights cannot be restored.

Technological Protection Measures

The Association opposes any attempt to introduce legal protections against the circumvention of technological protection measures. Apart from such technological protection measures limiting consumer sovereignty (by
providing a damaged good) and reducing competition (by locking software to hardware), they are an extremely poor substitute for security.

Pre-established Damages

The Association questions the proposal that pre-established damages should be sufficient to compensate right holders for the harm caused by infringement, as this is notoriously difficult to calculate. Copyright advocates like to claim, for example, that any breach is to the value of a sale, whereas research data actually suggests that piracy has no effect and may increase sales through circulation and familiarity [9].

Internet Service Providers

The Association opposes all liability for Internet Service Providers (QQ.I.1 pp.) of actions carried out by users of their communications infrastructure.


[1] Creative Commons Attribution Share Alike License,
[2] Trans Pacific Partnership Fact Sheet,
[dead link, available on]
[3] Chapter QQ (Intellectual Property Rights/Intellectual Property)
[4] e.g., Berne Convention, Universal Copyright Convention Geneva, Universal Copyright Convention Paris, TRIPS, WTC, Paris Convention for the Protection of Industrial Property, Patent Cooperation Treaty, Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, Patent Law Treaty
[5] Submission by Linux Users Victoria, Inc., on the Options Paper for the Review of the Innovation Patent System.
[6] Ben Klemens, Software Patents Don't Compute, 2005
[7] Rufus Pollock, "Optimal Copyright Over Time: Technological Change and the Stock of Works", University of Cambridge, 2007.
[8] House Standing Committee on Infrastructure and Communications, Inquiry into IT Pricing, 2012
[9] e.g., Luis Aguiar, Bertin Martens, "Digital Music Consumption on the Internet: Evidence from Clickstream Data", Institute for Prospective Technological Studies, Digital Economy Working Paper 2013/04


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