Laws that make it illegal to interfere with digital rights management (DRM) technologies—also known as “anti-circumvention” laws—are already much too broad and restrictive in most countries. Unfortunately, the US Trade Representative is working hard to expand its reach even more using the Trans-Pacific Partnership (TPP) agreement. The TPP’s anti-circumvention provisions, if adopted, would introduce new barriers to users’ abilities to tinker with their devices and content, even for entirely lawful purposes.
When the “Intellectual Property” chapter initially leaked in February 2011, we discovered that some of the most threatening provisions were found in the anti-circumvention portion of the copyright enforcement section. Specifically, they try to export the US anti-circumvention laws contained in the Digital Millennium Copyright Act (DMCA) passed in 1998. Since that law was passed, we have seen years of unintended consequences of bad copyright enforcement: It has chilled speech, stifled innovation, suppressed important security research, and caused years of immeasurable harm for users who are restricted from having the right to control and use the digital devices and works they have rightfully purchased. So it is disturbing, if not surprising, that the United States—under pressure from Hollywood and other big content interests—is trying to export these broken laws and insert them into trade agreements with several country partners.
Last August, thanks to another leak, we got an update: the anti-circumvention provisions are still there, and have actually become one of the most highly-contested issues between the TPP negotiating countries. Other TPP countries, notably Canada and Chile, appear to be resisting those provisions and proposing their own, more flexible, user-friendly text.
Here are some of the main areas of contention in the TPP's anti-circumvention provisions based on the leaked text from August 2013. Keep in mind that all of these issues could still be on the table and some of them might already be agreed upon and closed for further negotiation. Since the TPP is secret, we have no way of knowing which of them remain controversial and unsettled.
- Extreme Criminal Liabilities: The US proposals call for users to be charged with a crime for circumventing, or sharing knowledge or tools on how to circumvent DRM, as long as they have “reasonable grounds to know” that it is illegal to do so. Chile and Canada oppose vague language that could lead to criminal penalties for innocent users, and are advocating for terms that would make it clearer that only those that do these things “knowingly and for commercial purposes” could be held criminally liable for their activities.
- Reverse Engineering Exemption: The US DMCA includes exceptions for users to circumvent DRM for the purposes of making programs interoperable on other platforms or doing encryption research of any device or content. But unfortunately, even these safeguards were not enough to prevent copyright holders from going after security researchers. The TPP's proposals, which are meant to address this same issue, are even narrower.
- Criminalizing Users Who Share Circumvention Tools or Methods: In US law, it is a crime to distribute tools or the knowledge of how to circumvent DRM on any device. This means that even if there is a permitted exception to the rule—such as for libraries that could remove DRM to determine if they want to acquire a book or for a person with visual disabilities who could change the format of a movie for their own viewing—users who are not technical experts are effectively left to find ways to get around DRM on their own. The US proposes the same sort of language in TPP: weak, narrow, fair use carve outs to rightsholders' otherwise unlimited right to control the use and access to their works. Chile and Canada want to specify that it would be only illegal if a cryptographer offers tools or information about breaking DRM if they seek compensation for their services.
- Flexible Exceptions and Limitations: Many countries including Chile, New Zealand, and Peru propose language that strengthen rights to access and use copyrighted works for exceptional purposes allowed under their countries' laws. The purpose of this provision is to ensure that anti-circumvention laws don’t prevent or hinder fair uses of works or uses of works in the public domain. The US and Australia oppose this proposal.
- DMCA Rule Making System: The US proposes language that would pave the way for other countries (if they have not signed a trade deal with them already) to enact a DMCA rule making system, which is an administrative process to approve of temporary exceptions to the blanket ban on circumventing DRM. The US proposal includes a strict time limit on such exceptions. Other countries propose longer terms for exemptions and Canada even proposes alternative language that would leave it up to each country to decide how they would determine new permitted uses through a “legislative, regulatory, judicial, or administrative process.”
These provisions are one of the main reasons we are fighting to stop TPP. We need to tell our lawmakers and the US Trade Representative that we do not want other countries to adopt this deficient, harmful system. We do not want these broken policies to be further enshrined into international law.
If you're in the US, please call on your representatives to oppose Fast Track for TPP and other undemocratic trade deals with harmful digital policies.
EFF's Analysis of Technological Protection Measure Proposals from 2011
InfoJustice: List of Analyses of the Leaked August 2013 “Intellectual Property” Chapter
Anti-Circumvention Provisions in the Leaked “Intellectual Property” Chapter from August 2013