Trade negotiators announced their agreement over the terms of the Trans-Pacific Partnership (TPP) on Monday, and yet the exact terms of the deal remain as secret as ever. For more than five years, we have been given a series of dubious justifications for keeping the text under close wraps. Now that it's done, there is absolutely no reason they should not release it immediately.
All we have are a series of official memos and statements that have begun to shed light on what's in the final draft of the trade agreement. From them, we've begun to be able to piece together just how terrible the TPP will be for the Internet and our digital rights internationally.
TPP requires a 20-year copyright term extension for the six of the 12 countries that currently have life of the author plus 50 years, according to New Zealand's official TPP factsheet. For New Zealand at least, it would apply to works that are still within the 50 year term of copyright restriction, but would not be retrospective; that is, it would not bring works that are already in the public domain back under copyright protection.
We have heard that there is a transition period for at least some countries, though it is unclear exactly what this entails or how long the transition period is. Reports suggest that Canada, at least, will not have the benefit of this transition period.
Even countries that already have life plus 70 year copyright terms are affected by the TPP's rules, because it will prevent them from shortening the length of copyright in the future. For example, the U.S. already has copyright terms that last for life plus 70 years, but there have long been calls, even from the Copyright Office, to shorten the term or at least to place conditions upon its last 20 years.
DRM Circumvention Bans
New Zealand has also confirmed that the TPP carries heftier criminal and civil penalties against those who unlock technological protection measures, aka digital rights management (DRM). It also includes a ban on providing devices and tools for enabling DRM unlocking. There may be an exception for those who break digital locks for "legitimate purposes," which is welcome, but would further entrench the belief that having our right to unlock our devices and content must be the exception and not the rule. There are already many penalties for copyright infringement so there is no need to designate DRM circumvention a separate criminal act.
Copyright Exceptions and Limitations
Politico and Inside U.S. Trade reports that the TPP does not require countries to enact exceptions and limitations language in their national copyright regimes, despite what we earlier believed may have been the success of tech companies in lobbying for such a requirement, backed up by calls from EFF and our partners. Rather than mandate that all TPP countries "shall achieve" balance in their copyright systems and enact strong safeguards for content users, it merely states that countries "shall endeavor" to achieve this balance. According to these sources, the Motion Picture Association of American (MPAA) fought hard against our last ditch efforts to make this language more robust because "it would put an onus on them to make an infringement case." If true, the U.S. Trade Representative is applauding themselves for including exceptions and limitations text in the agreement, even when it pretty much the flimsiest language they could have possibly put in this agreement.
ISP Liability Provisions
The TPP will likely mirror the United States' notice-and-takedown system that enables copyright holders to remove allegedly infringing works online. The Canadian government's TPP page suggests that it provides exceptions for countries that have already established their own intermediary liability systems. Notably, this would apply to Canada which has recently established a notice-and-notice system during its recent cycle of copyright reform legislation, and to Chile which requires judicial approval of content removal requests. While this country-specific exception is welcome, it would be problematic if these prevented other TPP countries from deviating from their stricter intermediary liability regimes in the future, to adopt the same system as Canada or Chile. Also problematic is that the USTR has likely lifted the restrictive aspects of the U.S. DMCA takedown rules without including important safeguards that can help protect users against takedown abuses, such as effective legal sanctions against abusers.
For now all we have are these statements to figure out what the TPP will do to our rights online and over our digital devices.
So when we will actually see the text? Likely we will within the month. The White House and Canadian trade officials have indicated they would be releasing in the coming weeks, but the exact timeline is still unclear. When it's released, we'll be ready to release our detailed analysis of the threats as soon as possible. And when that day comes, we'll finally be able to counter the White House's long campaign of misinformation about the TPP and how it's anything other than a deal that enshrines Hollywood and Big Tech's interests at the expense of everyone else's digital rights.