As the White House doubles down on its attempt to pass legislation to fast track secret trade agreements like the Trans-Pacific Partnership (TPP) agreement, their oft-repeated refrain about these deals' digital copyright enforcement provisions is that these policies would not alter U.S. law. In a 2013 interview, US Trade Representative said this about the TPP's copyright provisions:
what we have in there are things that are already in U.S. law about making sure, whether it is copyright or other protections, are fully enforced around the world.
But such claims are very misleading. Leaked texts have confirmed again and again that the TPP contains Hollywood's wish list of anti-user policies—the result of years of lobbying and schmoozing with trade delegates. What they want is the most restrictive interpretation of U.S. policy to become the international "norm" by which all other TPP countries will be forced to conform their national laws. This does not mean that the TPP exactly mirrors the language of U.S. copyright rules, namely, the Digital Millennium Copyright Act (DMCA). It's that the policies are abstracted enough so that U.S. law could still be compliant with them, while the other nations could be pressured to enact harsher restrictions.
What the White House never seems to mention is how U.S. lawmakers are in the process of conducting a comprehensive review of its own innovation policies. Congress, led by Rep. Bob Goodlatte, has held hearings on various aspects of U.S. copyright rules for close to two years. This followed a speech by the Register of Copyrights, Maria Pallante, who recommended various reforms to U.S. copyright rules, including shortening the term of copyright by twenty years (unless the copyright is renewed). President Obama, meanwhile, is still proposing provisions in the TPP that would lock us into existing, broken rules.
Let's check out some of the provisions from the latest leaked version of the TPP's Intellectual Property chapter, and identify some of the language that could be expanded to become more restrictive, or simply lock us into rules that are in serious need of reform.
Excessive Copyright Terms
TPP will require all signatory nations to adopt at least the United States' current copyright term, which is the life of the author plus 70 years—the term created by the Sonny Bono Copyright Term Extension Act of 1998. As we mentioned above, U.S. officials are already calling to shorten the automatic term of protection to the length outlined in the Berne Convention, passed in 1886, which set it at a minimum of the life of the author plus 50 years. So the TPP's requirements go beyond the Berne Convention’s requirement. If adopted in the final agreement—which seems very likely—countries will be forced to mirror the United States' excessive lengths that resulted from heavy lobbying from Hollywood (particularly Disney). And Congress could be dissuaded from reducing copyright terms. It is wrong for the White House to push for these terms when we may have the chance to shorten them, especially in light of growing evidence that such long terms harm people's ability to access to knowledge and culture.
Criminalizing DRM Circumvention
The TPP almost completely mirrors US law criminalizing acts of getting around DRM (aka technological protection measures, which is what it's called in international legal instruments). As we know from years of experiencing the adverse effects of DRM anti-circumvention rules, our system needs drastic reform here in the United States for a raft of reasons—including allowing users full access to content they have paid for, allowing archival of our digital heritage, and ensuring that users can repair their devices and keep them secure. It would be a huge mistake to lock us into policies that harm free speech, innovation, privacy, and access to knowledge.
Internet Service Providers (ISP) Liability
This portion of the agreement is still controversial (at least it was in May 2014 when the last leaked draft was written) so it's hard to say what the final provisions will look like. U.S. safe harbor rules, which limit the liability that intermediaries like ISPs and websites shoulder for their users, have been crucial to enabling new platforms and services to thrive in the United States. However, the safe harbor rules have not been without problems. Our Takedown Hall of Shame documents just a few examples of Internet services that have been forced to take down, block, or filter important and legal content, because they fear the consequences of not going far enough to respond to infringement accusations. This is another area where we ought to learn from the deficiencies of the U.S. system to inform us and pass better rules, and yet again, the White House is seeking to lock us into a flawed system.
Criminal Penalties for File Sharing
Like U.S. law, the TPP has a dangerously low threshold for criminal copyright infringement where even non-commercial acts can be criminally prosecuted. But the TPP's criminal penalty provisions diverges from U.S. law in several ways. The TPP calls for a vague requirement that prison sentences and monetary fines must be "sufficiently high" to deter people from infringing again. That provision could lead to pressure to increase already high penalties. Also, U.S. law has a more specific definition of property that can be subject to seizure, while the TPP would enable authorities to seize a broader category of "materials and implements" related to the alleged infringing activity.
Fair Use: The TPP does not contain rules like the United States' flexible fair use regime. Although the agreement now suggests a "three-step test" for copyright exceptions and limitations, that test might limit the scope of copyright exceptions The language in the TPP could even be used to constrain fair use, or discourage new specific exceptions and limitations passed legislatively or through court precedents.
Criminalization of Investigative Journalism and Whistleblowing
The most recent leak of the TPP's Intellectual Property chapter revealed some of the most atrocious, human-rights-violating provisions we had seen yet. If it remains as written, these trade secret rules could be used to enact new laws to crackdown on whistleblowers and journalists. In many ways this echoes provisions in the Computer Fraud and Abuse Act (CFAA), which was used to charge Aaron Swartz with heavy-handed criminal penalties for accessing and downloading articles from the research database, JSTOR. EFF is already working to reform the CFAA, and yet the TPP contains trade secret provisions that could be used to expand state efforts to crack down on journalists using the Internet to expose corporate wrongdoing.
All of these examples illustrate that when the White House claims that the TPP's rules would not change US law, they are being disingenuous at best. Even where its provisions do not explicitly require U.S. lawmakers to pass new law, TPP is a scheme to make more restrictive rules the international standard. Lobbyists for entertainment companies use the secretive trade negotiation process to enact their vision of more draconian, anti-innovation copyright law, and then use those trade agreements to move domestic law and policy in the wring direction. This kind of shady, undemocratic international policy laundering scheme has been going on for over two decades. This is why we need to stop TPP and put an end to this copyright creep.
If you're in the US, take action to stop TPP and other anti-user trade deals from getting fast-tracked through Congress by contacting your lawmaker about trade promotion authority: