What is the Trans-Pacific Partnership Agreement (TPP)?
The Trans-Pacific Partnership (TPP) is a secretive,
multi-national trade agreement that threatens to extend restrictive
intellectual property (IP) laws across the globe and rewrite international
rules on its enforcement. The main problems are two-fold:
(1) IP chapter: Leaked draft texts of the
agreement show that the IP chapter would have extensive negative ramifications
for users’ freedom of speech, right to privacy and due process, and hinder
peoples' abilities to innovate.
(2) Lack of transparency: The entire process has
shut out multi-stakeholder participation and is shrouded in secrecy.
The eleven nations currently negotiating the TPP are
the US,
Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada,
Mexico, and Brunei Darussalam. The TPP contains a chapter on intellectual
property covering copyright, trademarks, patents and perhaps,
geographical
indications. Since the draft text of the agreement has never been offically
released to the public, we know from leaked documents, such as the
February
2011 draft US TPP IP Rights Chapter [PDF], that US negotiators are pushing
for the adoption of copyright measures far more restrictive than currently
required by international treaties, including the controversial
Anti-Counterfeiting Trade Agreement(ACTA).
The TPP Will Rewrite Global Rules on Intellectual Property
Enforcement
All signatory countries will be required to conform their
domestic laws and policies to the provisions of the Agreement. In the US, this
is likely to further entrench controversial aspects of US copyright law (such
as the
Digital Millennium
Copyright Act[DMCA]) and restrict the ability of Congress to engage in
domestic law reform to meet the evolving IP needs of American citizens and the
innovative technology sector. The recently leaked US-proposed IP chapter also
includes provisions that appear to go beyond current US law.
The leaked US IP chapter includes many detailed requirements
that are more restrictive than current international standards, and would require
significant changes to other countries’ copyright laws. These include
obligations for countries to:
The TPP would force the adoption of the US DMCA Internet intermediaries
copyright safe harbor regime in its entirety. For example, this would require
Chile to rewrite its forward-looking
2010
copyright law that currently establishes a judicial
notice-and-takedown regime, which provides greater protection to Internet users’ expression and privacy than the
DMCA.
- Regulate
Temporary Copies: Treat temporary reproductions of copyrighted works
without copyright holders' authorization as copyright infringement. This was
discussed but rejected at the intergovernmental diplomatic conference that
created two key 1996 international copyright treaties, the WIPO Copyright
Treaty and WIPO Performances and Phonograms Treaty.
- Expand
Copyright Terms: Create copyright terms well beyond the
internationally agreed period in the 1994 Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS). Life + 70 years for works created by
individuals, and following the US-Oman Free Trade Agreement, either 95 years
after publication or 120 years after creation for corporate owned works (such
as Mickey Mouse).
- Enact
a "Three-Step Test" Language That Puts Restrictions on Fair Use: The United States Trade Representative (USTR) is
putting fair use at risk with restrictive language in the TPP's IP chapter. The
US and Australia are both proposing very restrictive text, and Peru is willing
to accommodate the bad language.
- Escalate
Protections for Digital Locks: It will also compel signatory nations to
enact laws banning circumvention ofdigital
locks (technological protection measures or TPMs)[PDF] that mirror the DMCA
and treat violation of the TPM provisions as a separate offense, even when no
copyright infringement is involved. This would require countries like New
Zealand to completely rewrite its innovative 2008 copyright law, as well as
override Australia’s carefully-crafted 2007 TPM regime exclusions for
region-coding on movies on DVDs, videogames, and players, and for embedded
software in devices that restrict access to goods and services for the device—a
thoughtful effort by Australian policy makers to avoid the pitfalls experienced
with the US digital locks provisions. In the US, business competitors have used
the DMCA to try to block printer cartridge refill services, competing garage
door openers, and to lock mobile phones to particular network providers.
- Ban Parallel Importation: Ban parallel importation of
genuine goods acquired from other countries without the authorization of
copyright owners.
- Adopt Criminal Sanctions: Adopt criminal sanctions for
copyright infringement that is done without a commercial motivation, based on
the provisions of the 1997 US No Electronic Theft Act.
In short, countries would have to abandon any efforts to
learn from the mistakes of the US and its experience with the DMCA over the
last 12 years, and adopt many of the most controversial aspects of US copyright
law in their entirety. At the same time, the US IP chapter does not export the
limitations and exceptions in the US copyright regime like fair use, which have
enabled freedom of expression and technological innovation to flourish in the
US. It includes only a placeholder for exceptions and limitations. This raises
serious concerns about other countries’ sovereignty and the ability of national
governments to set laws and policies to meet their domestic priorities.
Non-Transparent and On The Fast Track
Despite the broad scope and far-reaching implications of the
TPP, negotiations for the agreement have taken place behind closed doors and
outside of the checks and balances that operate at traditional multilateral
treaty-making organizations such as the World Intellectual Property
Organization and the World Trade Organization.
Like ACTA, the TPP is being negotiated rapidly with little
transparency. During the TPP negotiation round in Chile in February 2011,
negotiators received strong messages from
prominent
civil society groups demanding an end to the secrecy that has shielded
TPP negotiations from the scrutiny of national lawmakers and the public.
Letters addressed to government representatives in
Australia,
Chile,
Malaysia,
New Zealand and
the
US emphasized
that both the process and effect of the proposed TPP agreement is deeply
undemocratic. TPP negotiators apparently discussed the requests for greater
public disclosure during the February 2011 negotiations, but took no action.
Why You Should Care
TPP raises significant concerns about citizens’ freedom of
expression, due process, innovation, the future of the Internet’s global
infrastructure, and the right of sovereign nations to develop policies and laws
that best meet their domestic priorities. In sum, the TPP puts at risk some of
the most fundamental rights that enable access to knowledge for the world’s
citizens.
The USTR is pursuing a TPP agreement that will require
signatory counties to adopt heightened copyright protection that advances the
agenda of the US entertainment and pharmaceutical industries agendas, but omits
the flexibilities and exceptions that protect Internet users and technology
innovators.
The TPP will affect countries beyond the 11 that are
currently involved in negotiations. Like ACTA, the TPP Agreement is a
plurilateral agreement that will be used to create new heightened global IP
enforcement norms. Countries that are not parties to the negotiation will
likely be asked to accede to the TPP as a condition of bilateral trade
agreements with the US and other TPP members, or evaluated against the TPP's
copyright enforcement standards in the
annual
Special 301 process administered by the USTR.
11 Governments Are Meeting in Peru to Figure Out How They
Can Control the Internet
Remember SOPA? Remember how when we the people finally
defeated SOPA everyone got so stoked that confetti poured out of their eyeballs
and its opponents downloaded films and albums and pirated video games in
celebration? Well, shortly after SOPA there was CISPA—the Cyber Intelligence
Sharing and Protection Act—a bill that is
both
scarier than Zombies and much less well known than SOPA .
On April 18, three days after the Boston Marathon bombing,
CISPA passed in the House of Representatives. Obama’s White House has expressed
“
fundamental
concerns” about CISPA. They are justifiably a bit turned off by how CISPA
doesn’t specify precisely how it intends to spy on the internet—and when it is
ok to spy on internet users—and that is a terrifying prospect.
As a Canadian, these American “fuck up the internet” bills
have always been disconcerting. While Canadian sovereignty would ideally save
anyone who lives in this country and errs on the wrong side of a SOPA or a
CISPA—with so much internet traffic filtering through American-owned web
servers—it is not out of the question that American jurisdiction could be
called against an international cyber-offender. The state of Virginia, for
example,
claimed
jurisdiction against the Hong Kong-owned Megaupload who was hosting
their website in that state.
But now it appears that it’s going to be even easier for
international copyright offenders to be tried in court by the interests–and
lobbying power–of Hollywood. Starting today, 11 countries—
Canada, America,
Mexico, Peru, Chile, Vietnam, Singapore, Japan, Brunei, Malaysia, Australia,
and New Zealand—are
having
a secret (no members of the public and no press) meeting in Lima, Peru to
figure out what can be done about copyright offenders who transmit Hollywood’s
precious content over the interweb’s tubes without paying for it.
The meeting is held under the banner of the Trans-Pacific
Partnership (TPP) Agreement. They’re looking to sign an international treaty
that will create world government-esque laws to handle anyone who downloads an
early leak of Iron Man 3 illegally.
But in North America, the ACTA movement is still very much
alive. Prime Minister Stephen Harper’s government
passed a bill in March that
makes Canada more ACTA-friendly by allowing customs officers to destroy
counterfeit goods and ratcheting up the criminal penalties against copyright
offenders. And the United States has seized
hip-hop
blog domains without warning or trial, because they were alleged to host
pirated material.
A
leaked chapter outlining some preliminary discussion to re-examine
intellectual property has revealed that TPP wants to add further checks and
balances to restrict fair use. Those behind TPP want to make sure that if a
teacher is trying to show some copyrighted material in their class for the
purpose of education, or if a humorist using copyrighted material in an article
for the purpose of satire, they’re doing so under what TPP calls a “good faith
activity.”
It may take a while before the results of this TPP meeting
in Peru filter out to the press, but it’s crystal clear that even though SOPA
died, the Hollywood lobby is more than willing to generate new legislation and
international partnerships to protect its interests. SOPA, for a combination of
reasons, incited the ire of the public. We saw SOPA blackouts where websites
like Reddit and Wikipedia went offline for a day, celebrities spoke out against
it on Twitter; there was a bona fide cultural movement.
But now, the language behind international efforts like ACTA
or TPP is getting more and more obscure, the reporting on such efforts less and
less frequent, and the meetings being held to define these treaties are being
held behind closed doors. The wheels of government are moving quickly to
restrict international copyright online as much as possible—with the lobby of
Hollywood thrusting it forward—in order to preserve the profits of content
gatekeepers like the RIAA and MPAA.
![the United States is trying to export the worst parts of its intellectual property law without bringing any of the [fair use] protections](https://www.eff.org/sites/default/files/images_insert/tpp_1.png){kind=link}
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