An Australian View of the U.S. Proposals for ISP Provisions in the TPP

On Sunday 4 March, I attended the stakeholders’ forum at the 11th round of the Trans-Pacific Negotiations in Melbourne. I am particularly interested in the intellectual property chapter given my involvement in landmark copyright litigation in Australia. The leaked US proposals suggest that the USTR are negotiating for: a legal regime of ISP liability beyond the DMCA standards (art. 16.3) legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; (art. 16.3.b.vi.A) requiring identifying internet users for any ISP, going beyond U.S. case law (art. 16.3.b.xi) It is challenging to write about the TPP as we are working off a leaked text that is now a year old.  For the full text of the leaked US IP chapter proposals from February 2011 see: http://keionline.org/node/1091 I am a senior associate at Herbert Geer Lawyers in Melbourne.  Our team has successfully defended an Australian ISP, iiNet in the Federal Court and Full Federal Court against a copyright authorisation action brought by 34 Hollywood and Australian film and television studios, representing the major motion picture studios in Australia and the United States. The Australian Federation Against Copyright Theft (AFACT) has been prominent in the conduct of the claim on the studios’ behalf.  However, technically AFACT is not a party to the proceeding.  Cables released by Wikileaks revealed that “despite the lead role...

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