December 8, 2015 | By Maira Sutton

How the TPP Will Affect You and Your Digital Rights

The Internet is a diverse ecosystem of private and public stakeholders. By excluding a large sector of communities—like security researchers, artists, libraries, and user rights groups—trade negotiators skewed the priorities of the Trans-Pacific Partnership (TPP) towards major tech companies and copyright industries that have a strong interest in maintaining and expanding their monopolies of digital services and content. Negotiated in secret for several years with overwhelming influence from powerful multinational corporate interests, it's no wonder that its provisions do little to nothing to protect our rights online or our autonomy over our own devices. For example, everything in the TPP that increases corporate rights and interests is binding, whereas every provision that is meant to protect the public interest is non-binding and is susceptible to get bulldozed by efforts to protect corporations.

Below is a list of communities who were excluded from the TPP deliberation process, and some of the main ways that the TPP's copyright and digital policy provisions will negatively impact them. Almost all of these threats already exist in the United States and in many cases have already impacted users there, because the TPP reflects the worst aspects of the U.S. Digital Millennium Copyright Act (DMCA). The TPP threatens to lock down those policies so these harmful consequences will be more difficult to remedy in future copyright reform efforts in the U.S. and the other eleven TPP countries. The impacts could also be more severe in those other countries because most of them lack the protections of U.S. law such as the First Amendment and the doctrine of fair use.

General Audience

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Innovators and Business Owners

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Libraries, Archives, and Museums

  • Excessive copyright terms harm the availability of books, photographs, and all creative works in the public domain. It also worsens the orphan works problem, when obtaining permission to use works is impossible because the rightsholder is unknown, deceased, or is nowhere to be found, and so preserving or archiving copies of them could be legally risky.
  • Heavy penalties for infringement, in the form of pre-established statutory damages that are not connected to the actual harm from infringement, chills preservation and archival efforts, where copying or changing the format of existing works is already legally risky.
  • Research and quotation can be hampered by bans on circumventing DRM on books or other kinds of digital content, and also limit the availability of digital works.
  • Despite explicit exception for libraries and museums, a ban on tools for circumventing DRM limits their ability to take advantage of it because they often lack the knowledge or resources to do so.
  • Weak exceptions and limitations language gives no incentive for countries to give legal certainty to activities of libraries, archives, and museums that involve technical acts of copying or DRM circumvention—such as enabling the use of copyrighted works for research and quotation, preservation, and copying material for educational purposes.

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Students

  • Use of textbooks, documents, movies, photographs, or other copyrighted works for school assignments and projects could be restricted even further because such rights are not enshrined in the TPP.
  • Removing DRM or rights management information from textbooks, articles, or any kind of creative work could lead to criminal liabilities if they share the unlocked work with friends or fellow students.
  • Excessive copyright terms harm the availability of books, photographs, and all creative works in the public domain. It also worsens the orphan works problem, when obtaining permission to use works is impossible because the rightsholder is unknown, deceased, or is nowhere to be found, and so using them for research or school projects could be legally risky. Too-long-copyrights also make books more expensive.
  • Heavy-handed criminal and civil penalties for copyright infringement can be chilling on students who seek to share or use copyrighted works for educational purposes, or at worst, it could lead to imprisonment or leave them with huge fines.

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Impacts on Online Privacy and Digital Security

  • New rules will block reforms that EFF and others are working on to protect website owners from having to reveal their real name, address, and other personally identifying information through the DNS, making them vulnerable to copyright and trademark trolls, identity thieves, scammers and harassers.
  • ISPs may block Virtual Private Networks (VPNs) as part of their duty to cooperate with copyright owners to deter the unauthorized transmission of copyright material. As an intermediary, VPNs could also be made liable for the transmission of infringing works if they fail to follow safe harbor rules such as disconnecting repeat infringers.
  • If a user sends a counter-notice to restore wrongfully removed content, the online service provider can be required to pass on personal information of the user to the rightsholder to allow them to serve the user with a lawsuit in case they insist that the work infringed on their copyright.
  • There is no explicit exception for security researchers to circumvent DRM in order to conduct encryption research on digital devices or content, unlike under U.S. law. This is deeply problematic when third party researchers have been credited with finding security holes in many modern devices. This criminalization of DRM circumvention discourages people from identifying security flaws when doing so requires breaking the law.

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Website Owners

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Gamers

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Artists

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Journalists and Whistleblowers

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People with Sensory Disabilities

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Tinkerers and Repairers

  • Bans on getting around digital locks or circumventing DRM undermines people's ability to experiment and modify their own content and devices or to take it to a third-party repair service. Although countries may create exceptions to DRM rules, there is no incentive for them to do so because there are no obligatory exceptions.
  • DRM is used for anti-competitive purposes and blocks people from building services or products for use with existing platforms.
  • It is a separate criminal offense to share the knowledge or tools to unlock DRM restrictions.
  • Repairing a part in a car with embedded software may be a crime if it requires circumvention of the car's DRM.
  • Countries will be prohibited from requiring independent repair shops to be given access to the source code of the products they repair.
  • Modifying a home entertainment system, video game console, TV, ebook, or other type of digital platform to show content that is not available through official content providers could be illegal.

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Free Software

  • Bans on DRM circumvention undermine people's ability to examine and pick apart software used in or with devices and content, and experiment to create interoperable content and devices. DRM is often used for anti-competitive purposes and can be used to block free software services or products to be used with existing proprietary platforms.
  • Excessive copyright terms of life of the creator plus 70 years keep digital creative works, including software, locked behind onerous restrictions for longer.
  • The TPP would prohibit countries from requiring products be supplied with open source licenses, even where this would be helpful to curb rampant information security problems.

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Cosplayers and Fans of Anime, Cartoons, or Movies

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If you're in the United States, urge your lawmakers to call a hearing on the contents of the TPP that will impact your digital rights, and more importantly, to vote this deal down when it comes to them for ratification:

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