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 EnforcementAll 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 TrackDespite 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 CareTPP 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 InternetRemember 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.The Electronic Frontier Foundation is calling this the “biggest global threat to the internet since ACTA.” If you remember, ACTA (the Anti-Counterfeiting Trade Agreement) is an international, internet-policing treaty that was shut down by the European Parliament with a 92 percent nay vote. Luckily for Europeans, no EU country is anywhere near the TPP negotiations in Peru right now—and European politicians are now quick to distance themselves from the policies that ACTA is trying to ram down the world's throat.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.”The language in this leaked TPP chapter is incredibly dense and dates back to February 2011—so not only is it a confusing bit of writing, but it will also likely be revised over and over during this meeting in Peru. As it stands, the EFF is worried that “the United States is trying to export the worst parts of its intellectual property law without bringing any of the [fair use] protections.” And just like SOPA or CISPA, many people are concerned that the broad language in new legal terms like “good faith activity” will potentially lead to unjust prosecutions.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.