On 17 February 2014 the legally verified text of the Australia-Korea Free Trade Agreement (KAFTA) was released to the public.
Negotiations on the Agreement were concluded in early December 2013, and the legally verified text was initialled by Chief Negotiators on 10 February 2014. It is anticipated that the agreement will be formally signed in the coming months.
The full Agreement consists of 23 chapters with various annexes and schedules, plus four side letters. Chapter 11 covers intellectual property aspects of the Agreement, which is the only part of the document I have read in any detail. It is important to bear in mind, however, that no part of the Agreement exists in isolation. Picking just one chapter and weighing up the potential gains and losses to either party is therefore not an entirely meaningful exercise. Other parts of the Agreement reportedly deliver some major trade benefits to Australia, for example the immediate lifting of 300% tariffs on chipping potatoes, a phase-out over three years of a 500% tariff on bluefin tuna (though this may not be such good news for the tuna), and a phase-out over 15 years of beef tarriffs currently set at 40% to 72%.
The IP aspects of the KAFTA are, for the most part, not particularly unexpected and, with the notable exception of certain copyright provisions, unlikely to require legislative changes in Australia. Unfortunately, it appears that the Agreement will oblige Australia to introduce the kind of ‘graduated response scheme’ to curtail repeated instances of online copyright infringement that I described just last week as ‘stupid’.
Additionally, the copyright provisions may limit Australia’s ability to introduce ‘technology neutral’ legislation that does not distinguish, for example, between products and cloud-based services for recording and/or time-shifting broadcast programs. These provisions might also prevent the introduction of a ‘broadcast-to-internet conversion’ service, such as that controversially provided by Aereo in a number of US markets.
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