Today Wikileaks published a new draft of the Trans-Pacific Partnership (TPP)’s intellectual property chapter. This draft text, from May 2014, gives us another look into the current state of negotiations over this plurilateral trade agreement’s copyright provisions since another draft was leaked last year. And what we’re seeing isn’t pretty. The TPP still contains text on DRM, ISP liability, copyright term lengths, and criminal enforcement measures, and introduces new provisions on trade secrets that have us worried.
Despite an over-abundance of evidence that laws punishing circumvention of DRM do far more harm than good, the USTR continues to press other countries to embrace the U.S.’s failed anti-circumvention policy. The leaked text suggest that some provisions have improved, but others have deteriorated. Although the leaked text does allow exceptions to the provision outlawing DRM circumvention, it suggests that these exceptions should be limited to specific cases “where there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process.” We know how well the exemption process has worked to protect lawful uses here in the U.S. (it hasn’t). If we are going to pressure other countries to adopt our failed policies, the least we should do is let them have an relatively easy way to prevent those policies from crippling innovation and free expression. What is worse, it would likely impede countries from adopting laws (such as those of India, although that law is hardly a paragon) that provide a blanket exemption for DRM circumvention for lawful purposes.
Whereas in the previous leak a coalition of countries had proposed that the TPP should allow them to retain full flexibility in determining the optimal length of their copyright term, that proposal has now been excised from the agreement—the only option now on the table is a provision that specifies a minimum term of years. How many years that should be, ranging from life plus 50 to life plus 100 years, remains undecided.
Equally troubling, there seems to be full agreement to limit countries from imposing conditions on any extended term after 50 years, which would go beyond the requirements of international law, and preempt creative proposals aimed at helping overcome the orphan works problem, for example by requiring rightsholders to pay a $1 renewal fee to gain the benefit of any extended term of copyright protection.
Criminal Treatment of Trade Secrets
A new, more detailed provision on trade secrets introduces text that would criminalize the unauthorized, willful access of a trade secret held in a computer system, or the misappropriation or disclosure of a trade secret using a computer system. This text goes far beyond existing trade secrets law, which in the United States and other common law countries is usually a matter for the civil not the criminal courts. No public interest exception, such as for journalism, is provided. In practice, this could obligate countries into enacting a draconian anti-hacking law much like the Criminal Fraud and Abuse Act (CFAA) that was used to prosecute Aaron Swartz.
Liability and Enforcement
On ISP liability the text remains quite contested, and as such is shuffled into a “non-paper” at the end of the leaked text. This article provides ISPs with a safe harbor against liability for copyright infringements by users, which EFF supports as a general principle. But the sting is in the tail: protection from liability may be conditioned on ISPs participating in a DMCA-like notice and take-down regime, where allegedly infringing content is removed from the Internet without a court order (although Canada would limit the ISP’s responsibility to sending notices of claimed infringement rather than taking the material down).
Also still contested are the criminal enforcement provisions. The issue is whether users can be held criminally liable for copyright infringements conducted on a commercial scale, for commercial advantage or financial gain. In the November 2013 text, the text was more highly contested by all 12 TPP countries, but now most of the disagreement lies between the US and Canada. The US seeks a broader definition of a criminal copyright infringement, to even cover acts that are noncommercial, whereas Canada only wants to apply criminal remedies to cases where someone has infringed for commercial purposes. If the US gets its way, then criminal penalties will apply even against users who were not seeking financial gain from sharing or making available copyrighted works, such as fans and archivists. Such a broad definition is ripe for abuse.
It's not all bad news. For the first time, the parties have reached agreement to include an article recording their recognition of “the importance of a rich and accessible public domain” and acknowledging “the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.” But this is easy to say. We are more interested in how these words are backed up with actions, and this article of the agreement imposes no specific obligations.
The latest TPP leak confirms that the US Trade Representative is not backing down from exporting the most severe interpretations of US copyright law. As we’ve reiterated for years, TPP is just the latest cycle of policy laundering that takes advantage of the secretive, special-interest dominated negotiating forum of trade agreements in order to continue heightening copyright standards around the world. The only way to make practical, public-interest driven digital policy is for our policymakers to be held accountable. Backroom trade negotiations are the epitome of a defective, undemocratic rulemaking system. As long as special corporate interests dominate the agenda of our international digital policymaking fora, Internet users will not stand for such illegitimate regulations.