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Joint Standing Committee on Treaties
Treaties tabled on 21 November 2011 and 28 February 2012

PALOMBI, Dr Luigi, Private capacity


Anti-Counterfeiting Trade Agreement

CHAIR: The committee will now take evidence on the proposed Anti-Counterfeiting Trade Agreement. This treaty was tabled in parliament on 28 February this year. I welcome Dr Luigi Palombi. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of the parliament. If you nominate to take any questions on notice could you please ensure that your written response to the questions reaches the committee secretariat within seven working days of your receipt of the transcript of today's proceedings. I invite you to make any introductory remarks you wish to make before we proceed to questions.

Dr Palombi : Thank you, Chair. Intellectual property is not the same as physical property. If I own a car it is my car, and my ownership of that car does not prevent my neighbour from owning a car just like it. Indeed, my neighbour's car can be identical in every detail, down to colour and options; in fact, the only distinguishing feature may be the numberplate. But if I own the copyright in a song or a logo registered as a trademark or a patented invention, no-one else can play that song or affix the trademark on goods or exploit the patented invention unless I give them written permission; it is all permission. My ownership of intellectual property means that I can prevent my neighbour from doing anything with my intellectual property which infringes the exclusive rights which intellectual property law provides me.

Another key difference between physical property and intellectual property is that ownership of my car does not by itself give me the right to drive my car on a highway. The law requires me to have a drivers licence and it imposes very strict tests to ensure that, by the time I qualify for that drivers licence, I am competent to drive my car on a public highway in such a way that I am unlikely to endanger both my life and the lives of other users. In addition, my car must be registered, which ensures that my car meets certain safety standards, and that it has suitable brakes, headlights, wipers, blinkers and seat belts, just to mention a few. If I break the law by driving without a drivers licence or drive my car on a highway whilst it is unregistered, I will be fined and may even go to jail. There are also other laws that regulate the way I can drive my car on a public highway. I should not drive it while I am intoxicated or under the influence of drugs. I must wear prescription glasses while driving if my eyesight is not perfect. I must drive within stipulated speed limits. Why? Because my ownership of the car, whilst it is something that I am entitled to in a free society, does not mean that I can behave in a manner that ignores the rights of others to drive on a public highway without being placed in danger. Besides the need to reduce danger, there are other matters of policy that dictate that I must drive my car on the left-hand side of the road. Shouldn't ownership of intellectual property also come with similar expectations? Why shouldn't intellectual property owners be required to take into account how their intellectual property impacts on others in society? Surely the interests of greater community are as important, if not more so, than the interests of intellectual property rights' owners. But when you listen to intellectual property owners, what you hear is a very one-sided story. That is what

ACTA is: a one-sided agreement—an agreement written at the behest of intellectual property owners for the benefit of intellectual property owners, which seeks to shift enforcement of intellectual property rights from the private sphere into the state sphere. According to intellectual property owners, all that matters is that their exclusive rights are not infringed, that their financial interests are not eroded and that the Australian government should introduce laws with greater and harsher penalties to make the Australian Federal Police and state police forces and Australian Customs investigate, prosecute and punish those who infringe their rights. In fact, according to these people, how they exercise their intellectual property rights on others in society and how in doing so those rights impact on the lives of others is of no consequence.

Pharmaceutical companies have tried to deny poor people in South Africa, India and Thailand access to anti-HIV retrovirals using patent laws and copyright owners want to deny people the ability to copy and share tunes amongst themselves, their family, in their own homes or on their own computers, televisions or iPods using copyright laws. They do not care about what is fair and reasonable in terms of the greater community. All they care about is themselves and maximising the value of their intellectual property rights. Why should Australians pay more for music, which they legitimately pay for through iTunes, than Americans? Why if I buy a DVD in the United States am I unable to play that DVD on my Australian purchased DVD player? I have not bought a counterfeit DVD, yet I am unable to view the US DVD on my television at home. Am I being unreasonable in thinking that there is something unfair in this situation?

An important point to note is that the nature of intellectual property varies, depending on what the subject matter of that property is. For instance, I can own the copyright in a tune, but I can only patent an invention. The problem is that the standards that determine the level of creativity for the copyright ownership of that tune or the level of genius for the entitlement to patent that invention varies not only from country to country but even from one court to the next in the same country. There are numerous examples of where a patented invention has been found to have been valid by one court and yet invalid by another court in the same country and valid by courts of one country and invalid by courts in another. What happens then? Which decision is the right one? And, by the way, who can afford the $4 million to $7 million in legal fees that it takes to challenge the validity of one patent in the Australian court system?

So I can be a counterfeiter in one country and not in another and I can be a counterfeiter according to one court decision and not according to another. Can I be guilty and innocent of the charge of counterfeiting at the same time?

A more serious problem is that today more and more of the public domain is being eroded by dubious intellectual property. For instance, pharmaceutical companies that are finding it increasingly difficult to invent new and inventive drugs are using evergreen techniques to scam the patent system so as to extend their valuable patent monopolies or are creating patent pickets to delay generic competition.

A recent investigation conducted by the European Commission's anti-trust division found issues with 1,300 patents involving a pharmaceutical substance. A recent example of evergreening in Australia involves a drug called Clopidogrel. The invalid patent, which was one of two granted by IP Australia over the very same identical drug, has been estimated to have cost the Australian government over half a billion dollars over a six-year period. And that is just one bad patent. Another problem is that it was not the Australian government that found this out. It took a generic medicine company three years of patent litigation, costing millions of dollars, which went all the way to the High Court of Australia to invalidate it. And even now the Australian government has done absolutely nothing whatsoever to claw back the money it should not have paid for the supply of that drug to the PBS at a time when the Australian people are being asked to make sacrifices so that the government can deliver a balanced budget tomorrow night. We are told that we need as a country to find $20 billion to balance the budget. Well, here is an example of how just one bad patent has cost the Australian government half a billion dollars. Wouldn't collecting that from the rogue pharmaceutical company that has benefited from the illegal patent be a good start?

Then there are the thousands of patents which have been granted over isolated human genes. In 2005 a paper published in Science estimated that 20 per cent of the human genome was US IP. These are human genes. No-one invented them. They are the products of nature. They belong to no-one. They belong to humanity. Yet, today, here we are talking about a treaty that seeks to ratchet up the civil and criminal penalties for counterfeiting at a time when it is plain even to Ross Gittins, the Sydney MorningHerald's senior economics writer, who a month ago wrote:

It's patently obvious the Australian patent system is broken.

In Europe, Lord Justice Jacobs, one of the UK's most eminent patent judges, who is a member of the Court of Appeal, said a few weeks ago at a conference: 'Anyone who believes that just because a patent has gone through a patent office it is a good one is believing in fairies.' Why should the Australian people be subjected to these kinds of one-sided treaties and the draconian laws which they encourage when the quality of the intellectual property is so very poor and laws that seek to provide greater levels of protection over dubious patents being granted every day by IP Australia, an organisation that believes that genetic mutations linked to the human breast and ovarian cancer genes are inventions and worthy of patent protection?

ACTA is a terrible document not only because of the way it was negotiated and drafted but because it ignores the rights of others in this society, which, thankfully, at the present time can still be regarded as a free one. Even the EU's rapporteur, Mr David Martin, a member of the European Parliament, is very critical of this document. In a draft resolution released only a few weeks ago, Mr Martin calls upon the European Parliament to reject ACTA because of the 'unintended consequences'. He says:

The intended benefits of this international agreement are far outweighed by the potential threats to civil liberties. Given the vagueness of certain aspects of the text and the uncertainty over its interpretation, the European Parliament cannot guarantee adequate protection for citizens' rights in the future under ACTA.

To read ACTA in isolation to the plethora of other international agreements such as TRIPS, the US-Australia Free Trade Agreement and the forthcoming Trans-Pacific Partnership Agreement also being negotiated in secret talks is to misunderstand the role which ACTA will play in a carefully crafted strategy designed to take more and more of the public domain out of the hands of the Australian people and deliver it into the hands of those who have the money to persuade unsuspecting bureaucrats that they are entitled to claim products of nature as their own inventions.

Finally, I wish to point out that it matters not whether my interpretation of ACTA differs from that of the Department of Foreign Affairs and Trade. What matters is that it is beyond argument that my opinion, being supported by Mr Ellicott QC, a former Commonwealth Attorney-General, member of parliament and Federal Court judge, provides a serious alternative position to that put forward by the same department that in 1993 negotiated the bilateral investment treaty with Hong Kong and which today has the Australian government tied up in litigation before the High Court of Australia and in international arbitration before the World Trade Organisation's dispute panel.

Why the litigation concerning a treaty with Hong Kong? Because this government has legislated to stop the placement of trade marks on cigarette packets in an effort to stop our children from becoming addicted to cigarette smoking. Somehow an agreement which no-one ever considered to be relevant to smoking is now at the centre of a legal cyclone because the Australian government wants to restrict the use of trade marks on cigarette packets. Whether ACTA demands changes in Australian law is a matter of conjecture. That said, ACTA is not a good document—it is a terrible document—negotiated by the department that cannot tell the wood from the trees and advised by another department that thinks human genes linked to breast and ovarian cancers are inventions. Thank you.

CHAIR: Senator Ludlam.

Senator LUDLAM: Thank you for your evidence this morning. The first paragraph of your submission lays out in quite strong language that you are not opposed to the concept of intellectual property and you are opposed to its misappropriation. Maybe that is a good place to start. In what key ways do you think this agreement has got the balance wrong, if you agree that there is a balance or a tension between interests in these sorts of things?

Dr Palombi : Principally, my concern when I wrote the submission was in relation to the extension to patents. Throughout the consultative process—and I use the word 'consultative' loosely—I did raise that issue on a number of occasions with DFAT and, although they were not able to tell me what was in the draft, they indicated to me that they understood the point that I was making. Nevertheless, the final version of ACTA does cover all types of intellectual property. This is a significant problem when you start to go beyond copyright and trademarks. There are very different types of intellectual property. Patents particularly are very complex. Proving validity of them involves a very serious degree of resources.

Senator LUDLAM: You have drawn three major problems to the attention of the committee. Maybe we should go through them in turn, the first one being the issue of patents. In the drafting of treaty instruments like this, is it possible for the Australian government to carve out a reservation and say, despite the ambiguous language here, under Australian law ACTA will be deemed not to apply to patents at all? We will hear from the negotiators soon. Can they do that?

Dr Palombi : The problem is that the document talks about intellectual property rights. It does not confine those rights to certain types. Once ratified, it is fair enough to expect that other parties to the agreement may decide that Australia, if it decides initially not to create laws in relation to, say, the criminalisation of patent infringement, will subsequently be put into a position where it is required to. This is the problem with the language of the agreement. It uses terms like 'at least'. It creates a floor. It does not create a ceiling. It is very vague in its parameters. It is very difficult for a current government to bind a future government in terms of policy. I think you have to take the document as it is and either accept it as it is or reject it as it is. I think it is incredibly dangerous to accept this document and say somehow we can carve out forever and reserve certain areas outside of it.

Senator LUDLAM: If our choices are that binary, would you be advocating that the committee therefore recommend that we do not ratify?

Dr Palombi : Yes.

Senator LUDLAM: That takes us straight to your second point about the ambiguity in the language and a variety of different concepts conflated together. Our options are somewhat limited as a committee in that we cannot go back and seek renegotiation or redrafting of the language in the agreement. We can propose a delay or a rejection, which is pretty rare. The third thing that you bring up is independent economic assessment. So you are quite critical of the way the national interest assessment is drafted. If we were to request that the department go back and do that work well, can you give us some idea of what that should include?

Dr Palombi : You are opening up a Pandora's box here. One of the problems we have at the moment is that we have no real way of measuring the value of intellectual property to this economy. It is difficult enough for anyone trying to get information from IP Australia, from its search engines, to actually know what intellectual property is and what is covered by intellectual property and what is not in terms of the patent register. It is not an easy thing to do to conduct a patent search. That is the first problem. The second problem is that there just does not appear to be the statistical analysis involved in providing some sort of economic measurement of what each piece of intellectual property is worth. You have to understand, for instance, that in Australia 90 per cent of all patents are granted to foreign organisations. Of that 10 per cent, whether they are innovation patents or standard patents, I do not know. What they are worth, I do not know.

I do not think anybody really knows what the value of Australian IP is and what its contribution is to Australia's GDP. We just do not know. We are completely flying blind in terms of intellectual property policy. All we ever hear is that intellectual property is a good thing. It might be, but we really do not know. If I could just add that in 1984 the Industrial Property Advisory Committee, which is what IP used to be called—it was not intellectual property, it was industrial property—investigated the patent system over a five-year period.

There was only one economist on that committee. The rest were patent lawyers, patent attorneys and patent bureaucrats. And guess who wrote the dissenting report—the economist did, Professor Don Lamberton. He was critical, not of the patent system as such but of the processes employed by the committee in coming to the views that they did about the value of the intellectual property system, the patent system. So we really do not know.

Senator LUDLAM: I cannot be too critical of the government, then, of not doing a cost-benefit analysis if it is not going to be possible to monetise the benefits—or the costs for that matter. What should we do under these circumstances?

Dr Palombi : Because we cannot quantify it precisely, I suppose what we should do is try to at least work out who is going to be adversely impacted upon. For instance, the generic medicines industry has put forward a submission, or at least one member of the generic medicines industry has put forward a submission, concerned that this is going to lead to an increase in the cost of medicines. Perhaps it might be a good idea for certain industry groups to be more involved in working out how these changes are going to impact on them.

Senator LUDLAM: Okay. That would presumably take a little more time. You have pointed out that there is a potential here for a really nasty legal crash and our Patents Act expressly disclaims the validity of patents. It is, 'Okay, you have this but this is not going to protect you from the future challenge in court' and so on and then your reading of the way ACTA is drafted is that it does appear to cement-in a property right, whether that patent is later found to be valid or not. Am I reading that correctly?

Dr Palombi : You are in the sense that although there is an express disclaimer of validity the general presumption is—and it is not supported by law—if you go to the Federal Court and challenge a patent the position you are put in is generally the courts say that IP Australia has granted the patent. The onus is on you. Even though the law is very clearly to the effect that the opposite should apply, in practice the burden is ultimately on you to disprove validity. If you are facing criminal charges because you are a counterfeiter of a patent, for instance, as a worst case scenario, how are you going to do that? It costs millions of dollars to challenge a patent. You need very specialised lawyers. You will need technical experts, it probably will go all the way to the High Court and who is going to pay all this? You have Federal Police and state police. Probably Legal Aid will have to fund the defence. This is all going to cost millions of dollars. And who is benefiting from all of this? I do not know.

Senator LUDLAM: One of the major claims made by the government, to put the concerns of this committee to rest last year when we were looking into one of the earlier drafts, was that there was no proposed law reform here under any Australian statute. We are just blocking in the status quo. There will not be any future changes to law, so relax. You have pointed out the contradiction there in that, on the one hand, the department is claiming serious problems needing to be fixed and, on the other hand, apparently, there is no problem and there is nothing that needs to be fixed. Do you think there is a risk that we actually narrow our options for future legislation in this area if we sign on to this thing?

Dr Palombi : Yes. This is one of the biggest problems with this current philosophy of locking into these bilateral and regional free trade agreements where IP is somehow introduced into those agreements. We actually have an international forum called the World Trade Organisation, which has TRIPS, which is a multilateral global intellectual property agreement. If there are going to be changes to intellectual property standards and enforcement regimes, it should happen through that forum, not through these smaller bilateral or regional agreements. As a result, already under the US free trade agreement some of the flexibilities that we have under TRIPS have been eroded. For instance, in the pharmaceutical sphere now there is a requirement for generic companies to file patent certificates at the time that they apply for registration of a therapeutic good with the Therapeutic Goods Administration. This effectively is a by-product of a US system introduced in 1984. The problem is that we only inherited one part of the US system. Apart from the fact that the US system does not have a PBS et cetera and it is a completely different system altogether, we only inherited the worst parts of the US system. In America, for instance, a generic company has to file a similar certificate in relation to a patent that is listed on what they call the orange book, but the first company to invalidate a patent gets a 30-month marketing exclusivity in which no other company will have a drug similar to it approved by the FDA. So it is a way of not so much rewarding but compensating the generic company for the costs involved in challenging the patent, because it is seen as a public good to eradicate invalid patents. In Australia there is no such incentive so as a result not only do companies, taking the political example, face a 29-month injunction from the moment they flag the fact that they are going to challenge what ultimately turns out to be an invalid patent that costs half a billion dollars but also they do not get anything back. There was no real benefit for them other than the fact that they were then able, at the end of that 29-month period when the injunction expired, to market their product. But, of course, all the other generic companies could also enter the market.

Senator LUDLAM: It is a free for all then. We have just got to hope that they would do that sort of thing in the public interest. This is the last question from me but I will come back later if there is time, Chair. If there are no proposed law reforms flowing from this for Australia and if it is very difficult, if not impossible, to identify the benefits, then what would be the effect on Australia if the committee were to recommend that we did not ratify or that at least we should delay it?

Dr Palombi : I think it would be a positive benefit to the country for the parliament not to ratify ACTA. If DFAT's stated position is accurate, then it will neither add nor detract.

Senator LUDLAM: I will leave it there. Thanks very much.

CHAIR: Dr Palombi, you have referred to the discussions going on in the European union and the European parliament and to rapporteur David Martin. I have noticed that in a press release, as recent as 25 April, about this issue one of the European parliamentarians says that the focus of their political group will be on how to fix ACTA and not to kill it. There is a suggestion in what is being put forward to the European parliament that they should reject the present ACTA and go back to the drawing board. Is that your sense of this issue? Do you have a response to the idea that ACTA should be fixed rather than killed?

Dr Palombi : In terms of this agreement I think it needs to be killed. In terms of the principles behind trying to prevent mass counterfeiting of a famous trademark luxury brand, for instance, I believe that there is merit in there being some international cooperation to prevent the mass misappropriation of, say, the Louis Vuitton mark on luggage or such and such. I just do not think that this particular agreement on balance achieves its stated objective.

CHAIR: And one of the other European parliamentarians said that their political group would be voting against ACTA but wanted the commission to withdraw the agreement and seek sector specific agreements to tackle counterfeiting. I assume they are thinking here of music, literature, pharmaceuticals, the internet and so on. Again, do you have a response to the idea of sector specific agreements as an alternative?

Dr Palombi : In fact I think that is what really happens already, in a sense. For example, with pharmaceuticals, it is illegal to market and sell a pharmaceutical that is not registered on the Australian Register of Therapeutic Goods. So in terms of what is a counterfeit drug, I would say a drug that has not been registered is clearly illegal, not because it infringes any particular patent but because it simply has not been registered. There is a difference between counterfeiting in the sense that pharmaceutical companies think about it and the way, for example, trademark owners might think about it. So a trademark owner might say a fake Rolex watch is a counterfeit product, but in terms of the pharmaceutical industry counterfeit actually is a drug that has been made, probably in some unsafe environment or using components that do not even work. They might not even have a patented component in there—they probably do not—and they are probably toxic, for instance. So it is a very different thing. This is one of problems: we have this confusion in terminology. I think it makes a lot of sense for each industry to deal with those specific problems individually, because they are going to be very different in each case.

CHAIR: Can I ask specifically whether you have thought about the music industry and copyright there. I have quite a lot of sympathy for someone who writes a song and then, if the song is then produced and goes to the point of being on a CD or a DVD, has to deal with the issue that some bright spark either in Australia or in some other country is able to mass produce it and sell it at a cut-price rate. It seems to me that the person who has originally created the song is being robbed of some genuine entitlement. I wonder (a) whether you share that assessment and (b) how you see that fitting into this whole ACTA process. The committee has had representatives of songwriters come along and say, 'We support ACTA.'

Dr Palombi : Like you, Mr Thomson, I am sympathetic to authors and songwriters and creative people. It makes sense for them to be able to earn an income from their creativity. I have no difficulty with any of that. I am an author myself, not that I can retire on any of the royalties. That said, there are some interesting quirks about the way the copyright system operates in reality. The reality is that often creative people are not the beneficiaries of the system; it is the copyright owners that are. The copyright owners are not necessarily the creators.

For instance, in academic publishing there is a bit of a revolution going on right now because some months ago an academic, I think from Oxford or Cambridge, got fed up with the exploitative situation where, essentially, academics write papers for free then hand them over to publishers of journals. The owners of the copyright are those journals which demand at the time that the academic hands over the paper they also assign copyright—it is a condition of publication. So you do that, because you need to publish or perish as an academic. Then they own all these copyrights. What do they do? They then sell them back to university libraries at massive costs. I am talking $20,000 a year subscription fees, for instance. Needless to say, the copyright owners of these copyrights make enormous amounts of money. The academics get zero. The universities get zero. Yet they are the ones creating the intellectual property that ultimately is exploited by these publishers.

What is important here—the message that I want to put across—is that it is all well and good to have copyright laws, but we have got to make sure that the systems actually benefit those who are the creators, and the systems at the moment do not do that.

CHAIR: Doo you think that ACTA will have an effect on the process of determining patent validity and scope?

Dr Palombi : Could you just—

CHAIR: Do you think that ACTA will have any impact on the process of determining patent validity and scope? The present issues surrounding patent validity—do you think ACTA will have any impact on those?

Dr Palombi : To the extent that it has the potential to extend infringement into the criminal sphere, I think it is incredibly dangerous. At the moment it is bad enough to be on the receiving end of a civil lawsuit; I think to be on the receiving end of a search warrant being executed by the Australian Federal Police or state police would be quite frightening for most people.

CHAIR: Am I right in thinking that a patent holder would have to establish the validity of a patent before they could claim to have intellectual property rights over the patent? The Patent Act expressly disclaims the validity of patents.

Dr Palombi : No. Unfortunately, as I said before, the general presumption, despite the legislative disclaimer, is the other way around. Courts tend to start from the beginning that, if a patent has been granted, the patent owner has a right. Also, the law is a bit complicated in the sense that, on grant, you have the right to sue—you have the right to sue for damages and you have the right to go and get an injunction—so it is a bit confusing in that sense. Of course, patent owners tend to publicise the fact that they have patents as if they are an irrefutable asset. But they are challengeable at any stage during the 20-year period that the patent exists.

CHAIR: In your submission to the committee you said that there was a contradiction between the national interest analysis claim—that is, ACTA overcomes the problems with the trade in counterfeit and pirated goods which exist under the current intellectual property standards while on the other hand it claims that no legislative measures would be required to implement it. Do you think that there will be new legislation required to implement ACTA?

Dr Palombi : The legislation may not necessarily come directly through ACTA. It may come through subsequent agreements—for example, the trans-Pacific partnership agreement that is currently being negotiated. ACTA is more like a vehicle for change—it creates the environment for change—but the changes may come through other agreements. This is the real problem with ACTA. That is why I say that you cannot look at ACTA in isolation from what already exists in terms of Australia's international obligations in relation to intellectual property and those that are currently being negotiated or those that may come in the future.

Senator FAWCETT: You are concerned about the lack of clarity and depth in the national interest analysis, and it does not contain an economic analysis of the impact of the ACTA. Who do you think would be well placed to look at an economic impact, and what you think it would be on Australia?

Dr Palombi : I think that at this stage the Productivity Commission would probably be the most appropriate body. I think that, when it did its review of bilateral trade agreements, one of the recommendations was to that effect; that every agreement prior to signing should undergo some sort of economic analysis. I do not think the government accepted that recommendation, but I think there is a lot of merit in the Productivity Commission's suggestion and I would say that at this stage the Productivity Commission would be the most appropriate body.

Senator FAWCETT: So is it your concern that economic impact would be at a whole-of-economy type level in terms of trade, or are you concerned, in the discussion you had previously, that the publisher benefits but the creator of the intellectual property does not? Is that your concern about the impact, or are you concerned about the more macro picture?

Dr Palombi : I think both. In terms of understanding what benefit intellectual property laws actually have on the ground in Australia to Australians, we really need to burrow down into the depths of the relationships between creator and under, between creator and the collecting societies for instance in terms of copyright, how those collecting societies work, how they collect funds, how they distribute those funds, what they actually do for creative people. We also have to look at the greater picture, how all these laws impact on consumers. It is just ridiculous, in my view. I do not subscribe to illegal downloading of songs or movies, I go to iTunes, but immediately because I am in Australia I do not get the variety that Americans do and I have to pay a higher price than Americans. Why? It is all about the way the copyright owners elect to exercise those rights.

Senator FAWCETT: Lastly, you sent us a document prior to the hearing today which relates to a submission to the European parliament. There is a comment in here that the intended benefits of this international agreement are far outweighed by the potential threats to civil liberties. Could you expand on that in Australia's context?

Dr Palombi : In terms of civil liberties in the Australian context, it is the potential to create criminalisation for patent infringement. We already have criminal provisions for infringement of copyright and trademarks for certain kinds of activities but not in relation to patents and not in relation to other forms of intellectual property. ACTA opens the door to that; even though it does not mandate it, it opens the door. I think this is an incredibly dangerous thing, especially when the validity of patents is always open to question.

CHAIR: Thank you for attending to give evidence today. If the committee has any further questions, the secretariat may seek further comment from you at a later date.