TPP digital rights fears: IP laws lock-in, offshore housing of personal data

Australians are at risk of having their personal data exposed to lax privacy laws offshore, and may be locked into outdated copyright legislation, thanks to the new Trans-Pacific Partnership, digital rights advocates have warned.

While the detail of the 12-country trade pact is yet to be released, the official summary expressly rules out any member nation being able to force a company to store its citizens' personal data within their country of residence.

Under section 14, "Electronic Commerce", the summary states that members have agreed "not to require that TPP companies build data centres to store data as a condition for operating in a TPP market".

This could leave personal data exposed to less stringent privacy laws than we have here in Australia, warns Electronic Frontiers Australia's Jon Lawrence.

"If we're not able to pass laws that say personal data has to be stored on-shore then it will go to wherever it is cheapest, subject to whatever privacy regime is in place," Mr Lawrence said.

Australia and other nations are understood to have pushed back to carve out exceptions to the provision during the five-year, highly secretive negotiations, however the extent to which this was successful will not be known until the full text of the pact is made public.

Currently, electronic health records are required to be stored on-shore in Australian data centres under the Australian Government Protective Security Policy Framework.

As Prime Minister Malcolm Turnbull has said there will be no changes to data protection as a result of the deal, this may be one carve-out.
The Prime Minister has also said there will be no changes to Australian copyright legislation as a result of the agreement.

However, copyright law reform advocates worry that's a negative for Australia rather than a positive, as it may effectively lock us in to legislation some consider already outdated in the digital age.

A report form the Australian Law Reform Commission tabled in parliament last year recommended several changes to copyright laws including the introduction of a flexible fair use exemption as a defence to copyright infringement. Attorney-General George Brandis said it was "the most significant review of the Copyright Act since it came into operation in 1968".

However, if Investor State Dispute Settlement is revealed in the detail of the TPP, companies will be able to sue member governments if they act in a way that harms their financial interests.

Amending copyright law to include fair use provisions could be a trigger for this, Swinburne Law School research fellow Angela Daly said.

"If ISDS is included in TPP, then this may make changes to laws such as these difficult, especially if they would affect a company's 'investment' in Australia which can include their intellectual property rights," Dr Daly said.

"The Eli Lilly ISDS case in Canada shows some of the problems that countries may face in trying to push back IP rights in favour of the public interest when they have signed up to these trade agreements."