We previously voiced concerns that the secretive negotiations surrounding the Trans-Pacific Partnership (TPP) could negatively impact copyright, privacy, free speech and the application of fair use online. Unfortunately, WikiLeaks’ release of the TPP Intellectual Property Rights Chapter earlier this month confirmed suspicions that a treaty negotiated in secret under the supervision of corporate advisors would favor corporate interests and neglect or infringe on public rights.
What is TPP?
TPP is a broad multinational trade agreement with significant implications for intellectual property rights. A series of leaked documents (Feb. 2011, Aug. 2012, Nov. 2013) provide the only information to date regarding the specific contents of the agreement. Negotiations are conducted behind closed doors and access to the treaty proposal is restricted to select representatives from the participating countries and several hundred corporate advisors. The list of participating countries presently includes the United States, Canada, Mexico, Chile, Peru, Malaysia, Singapore, Japan, Vietnam, Brunei and Australia.
How would TPP affect copyright?
U.S. negotiators claim that TPP would merely export existing U.S. copyright policies. However, the recent leak of the IP chapter exposes this statement as a misrepresentation of the actual agreement. Though TPP draws heavily on U.S. policies, it tends to codify the most restrictive aspects while forgoing many of the existing exceptions that permit some flexibility in the use of intellectual property.
The Electronic Frontier Foundation (EFF) and Knowledge Ecology International (KEI) have both provided thoughtful analyses of the latest leaked IP chapter that delve into the copyright ramifications of TPP. Although many elements apparently remain under discussion, the leaked document provides some insights regarding what may be in store. For instance, TPP as written would:
- Extend the international baseline for copyright terms from life plus 50 years for individuals and 50 years for corporate authorship to emulate the U.S. terms of life plus 70 years and 95 years for corporate authorship
- Limit governments’ abilities to legislate exceptions to copyright law
- Restrict fair use through a three step test that places an upper limit on rights
- Implement further prohibitions on breaking technical protection measures or DRM even in cases where the material is not protected by copyright
- Expand the potential damages that rights holders could claim in copyright disputes
- Shift liability for infringing websites to ISPs, prompting ISP filtering and blocking of websites alleged to infringe or facilitate infringement (n.b. this is a very serious risk to intellectual freedom; for instance, a critic could be silenced via filtering/blocking after three complaints of alleged infringements)
KEI summarizes the situation thus: “Compared to existing multilateral agreements, the TPP IPR chapter proposes the granting of more patents, the creation of intellectual property rights on data, the extension of the terms of protection for patents and copyrights, expansions of right holder privileges, and increases in the penalties for infringement. The TPP text shrinks the space for exceptions in all types of intellectual property rights. Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.”
This push to export American copyright policies is also problematic because it assumes that our current laws are desirable and effective. On the contrary, there is growing sentiment that existing U.S. copyright terms are already too restrictive, and that policies such as the DMCA are in need of reform or repeal. Earlier this year, the head of the U.S. Copyright Office testified before Congress and proposed a long list of issues in need of attention and possible reform, such as copyright term length, DMCA efficacy, statutory damages, licensing, and digital transmission of copyrighted materials. However, current domestic policies would become intractable if codified in an international treaty such as TPP; Congress would be unable to amend U.S. legislation without running afoul of international obligations and would face extreme pressure to conform to the treaty requirements. Techdirt’s critical commentary examines many of these issues in greater detail.
How did this happen?
Concerns rightly persist over the process and presumptively biased outcome of these surreptitious negotiations. Policymakers have favored powerful corporate interests by actively soliciting their guidance while simultaneously obstructing public participation. It is no surprise, then, that the leaked IP chapter caters extensively to Big Content and does little to protect public interests. By excluding the public from negotiations, policymakers forgo the opportunity to reach a balanced arrangement and invite significant damage to public rights that will be very difficult to repair in the future.
Further efforts to insulate TPP from public debate are underway. Almost all requests from members of Congress to review the proposal have been denied despite congressional jurisdiction over international trade agreements. The Obama administration’s request for “trade promotion authority” or “fast track authority” seeks to further erode congressional oversight by requiring Congress to vote on trade agreements within 90 days without the opportunity to request amendments.
It is extremely implausible that TPP would emerge intact from Congress under normal circumstances, but with fast track authority in effect Congress could be enticed to swallow the many unsavory aspects of TPP in order to obtain the more desirable components. EFF argues that “this is a classic example of policy laundering, whereby corporate interests use secretive international forums to trump the democratic process at the national level.” It remains to be seen whether Congress will approve the request for trade promotion authority and essentially forfeit their constitutional checks and balances over the Executive Branch.
What can you do to help fix TPP?
Public attention and involvement is critical at this time to dispute the furtive deal making and restrictive IP terms of TPP as President Obama and U.S. negotiators have expressed a desire to sign the trade agreement by the end of the year.
- Visit EFF’s action page for TPP where you can contact your representatives and ask them to oppose trade promotion authority and the secret negotiations surrounding TPP.
- Sign the petition at Stop the Trap opposing TPP secrecy, restrictions on Internet use, copyright, and privacy.
By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center at OSU Libraries