Leave it to Wikileaks to unleash a flurry of suspicion surrounding the latest draft of intellectual property and international copyright laws established by the Trans-Pacific Partnership (TPP), a multinational trade agreement aimed at strengthening economic ties between the United States, Canada, New Zealand, Japan, and eight other Pacific Rim countries.
Earlier this week, leaders from the adopting countries met to finalize the text of the TPP Trade Agreement, which included negotiating and drafting the intellectual property chapter, and mere days later the draft had been leaked by the notorious website aimed at making high-level state negotiations a lot more transparent.
While the overall mission of the TPP is clearly to strengthen ties between the signing nations, it seems that the intellectual property provisions that have been proposed by the agreement are quite problematic for IP scholars. A number of chapters of the TPP will affect creative artists, cultural industries, and internet freedom.
The new treaty has been a source of contention across the board since its inception. Many of its opponents have deemed the organization’s liberal policies “Obama Trade,” suggesting that the outlined policies contain radical immigration reform, the establishment of international copyright laws that would allow international courts to overrule state and federal laws in the United States, and intellectual property laws that would undermine the original intentions of adopting countries. Critics have alleged that the provisions give member countries a greater control over the release of information to the public, and those critics aren’t just the right-wing members of Congress: even presidential hopefuls Hillary Clinton and Bernie Sanders have criticized the TPP’s IP provisions.
While several of these documents have been leaked throughout their various stages in the media, the recent leak proclaims that these are the final stages of the document and that they’re not likely to change much from here before President Obama presents the document to Congress for approval. So what exactly are the terms of the agreement? Why are they problematic? Read on to find out.
The TPP International Copyright Laws Extend Copyright Terms
One of the central tenets of the agreement that appears most problematic for member countries is the extension of the life of a copyright. The agreement provides that all member countries must enact longer and stronger copyright protections, akin to those codified in U.S. copyright laws, otherwise known as Mickey Mouse copyright term extension. This would require all TPP countries to extend their copyright protections to the life of the holder plus 70 years – a length that currently only the U.S. and Australia have enacted.
While this may not seem like a bad thing to an artist or author that holds a copyright, many foreign intellectual property scholars feel that this could significantly harm freedom of expression, competition, and innovation. For example, Canadian law professor Michael Geist recently commented that increasing the length of copyright protections could cost the Canadian public $100 million, since “hundreds of creators who died years ago will not have their works enter the public domain for decades.” (Canadian copyright currently last for the life of the author plus 50 years)
Moreover, there is concern that the TPP would limit the policy flexibilities available to address the problem of orphan works – a work in which the author cannot be identified because they are lost, missing, or dead. In fact, the TPP’s policy on orphan works would directly contradict the position of the U.S. Copyright Office, which is currently seeking to impose limitations on damages and injunctions, when “orphan” copyrighted works are infringed. Yet, the TPP requires that signatories offer monetary damages and injunctive relief to anyone whose work is infringed.
The TPP International Copyright Laws Govern Internet Services Providers
Article I7 of the TPP agreement outlines how Internet Service Providers (ISPs) should deal with copyright infringement, stating “ that each party to the TPP must establish a judicial or administrative procedure through which rights holders can obtain the identity of a copyright infringer from an ISP in a timely and efficient manner” so they can protect themselves against further infringement. This provision mimics the DMCA, in that it effectively creates a take-down notice provision through its text. It also leaves room for Canada’s “notice-and-notice” scheme, which requires ISPs to notify copyright owners when their subscribers are sharing content online without permission.
The idea that an ISP would be required to track down and bear the costs of identifying alleged pirates seems almost preposterous, but it appears that that’s precisely what the TPP is aiming to do, since the final version of the agreement requires ISPs to “expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the infringement.”
Another, more vague provision, suggests that countries should encourage ISPs (including search engines and hosting services) to remove or disable content if a court of law deems that the material infringes on copyright. That effectively means that foreign court orders could be applied to block content in other countries, which obviously uproots age-old notions of sovereignty and international court jurisdiction.
TPP International Copyright Laws Imposes More Criminal Sanctions
Working alongside Hollywood lobbyists, the U.S. is pushing for a broader definition of a criminal violation of copyright, using language that would criminally implicate anyone who infringes on a “commercial scale.” This language, as opposed to criminalizing infractions with a “commercial purpose” makes the offense much broader. For example, say you shared an internet meme that went completely viral on your blog’s Facebook page. Since you use your blog to generate ad revenues or gain followers for your business, that would constitute an infringement on a commercial scale. Even if the sharing of your meme didn’t expressly lead to commercial gain, the U.S. could decide to penalize you for such an offense.
Additionally, the TPP would ban the use of DRM circumvention tools used to burn DVDs, CDs, and Blu-Rays. Manufacturers won’t be allowed to sell circumvention tools, which could significantly disrupt the software and media industries.
For or Against the TPP?
Depending on whether you’re for more protections or against, many of the tenets of the TPP are quite troublesome, considering that they impose some pretty severe conditions on the dissemination of information, in addition to an overhaul of international copyright laws. What are your thoughts on the new TPP trade agreement? Leave your comments below.