What Is the Trans-Pacific Partnership Agreement (TPP)?
The Trans-Pacific Partnership (TPP) is a secretive, multinational trade agreement that threatens to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement. The main problems are two-fold:
(1) Intellectual Property Chapter: Leaked draft texts of the agreement show that the IP chapter would have extensive negative ramifications for users’ freedom of speech, right to privacy and due process, and hinder peoples' abilities to innovate.
(2) Lack of Transparency: The entire process has shut out multi-stakeholder participation and is shrouded in secrecy.
The twelve nations currently negotiating the TPP are the US, Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei Darussalam. The TPP contains a chapter on intellectual property covering copyright, trademarks, and patents. Since the draft text of the agreement has never been officially released to the public, we know from leaked documents, such as the May 2014 draft of the TPP Intellectual Property Chapter [PDF], that US negotiators are pushing for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement (ACTA).
The TPP Will Rewrite Global Rules on Intellectual Property Enforcement
All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act [DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector. The recently leaked US-proposed IP chapter also includes provisions that appear to go beyond current US law.
The leaked US IP chapter includes many detailed requirements that are more restrictive than current international standards, and would require significant changes to other countries’ copyright laws. These include obligations for countries to:
- Place Greater Liability on Internet Intermediaries: The TPP would force the adoption of the US DMCA Internet intermediaries copyright safe harbor regime in its entirety. For example, this would require Chile to rewrite its forward-looking 2010 copyright law that currently establishes a judicial notice-and-takedown regime, which provides greater protection to Internet users’ expression and privacy than the DMCA.
- Escalate Protections for Digital Locks: It will compel signatory nations to enact laws banning circumvention of digital locks (technological protection measures or TPMs) [PDF] that mirror the DMCA and treat violation of the TPM provisions as a separate offense even when no copyright infringement is involved. This would require countries like New Zealand to completely rewrite its innovative 2008 copyright law, as well as override Australia’s carefully-crafted 2007 TPM regime exclusions for region-coding on movies on DVDs, video games, and players, and for embedded software in devices that restrict access to goods and services for the device—a thoughtful effort by Australian policy makers to avoid the pitfalls experienced with the US digital locks provisions. In the US, business competitors have used the DMCA to try to block printer cartridge refill services, competing garage door openers, and to lock mobile phones to particular network providers.
- Create New Threats for Journalists and Whistleblowers: Dangerously vague text on the misuse of trade secrets, which could be used to enact harsh criminal punishments against anyone who reveals or even accesses information through a "computer system" that is allegedly confidential.
- Expand Copyright Terms: Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TPP could extend copyright term protections from life of the author + 50 years, to Life + 70 years for works created by individuals, and either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).
- Enact a "Three-Step Test" Language That Puts Restrictions on Fair Use: The U.S. Trade Representative (USTR) is putting fair use at risk with restrictive language in the TPP's IP chapter. US and Australia have proposed very restrictive text, while other countries such as Chile, New Zealand, and Malaysia, have proposed more flexible, user-friendly terms.
- Adopt Criminal Sanctions: Adopt criminal sanctions for copyright infringement that is done without a commercial motivation. Users could be jailed or hit with debilitating fines over file sharing, and may have their property or domains seized even without a formal complaint from the copyright holder.
In short, countries would have to abandon any efforts to learn from the mistakes of the US and its experience with the DMCA over the last 12 years, and adopt many of the most controversial aspects of US copyright law in their entirety. At the same time, the US IP chapter does not export the limitations and exceptions in the US copyright regime like fair use, which have enabled freedom of expression and technological innovation to flourish in the US. It includes only a placeholder for exceptions and limitations. This raises serious concerns about other countries’ sovereignty and the ability of national governments to set laws and policies to meet their domestic priorities.
Why You Should Care
TPP raises significant concerns about citizens’ freedom of expression, due process, innovation, the future of the Internet’s global infrastructure, and the right of sovereign nations to develop policies and laws that best meet their domestic priorities. In sum, the TPP puts at risk some of the most fundamental rights that enable access to knowledge for the world’s citizens.
The US Trade Rep is pursuing a TPP agreement that will require signatory counties to adopt heightened copyright protection that advances the agenda of the US entertainment and pharmaceutical industries agendas, but omits the flexibilities and exceptions that protect Internet users and technology innovators.
The TPP will affect countries beyond the 11 that are currently involved in negotiations. Like ACTA, the TPP Agreement is a plurilateral agreement that will be used to create new heightened global IP enforcement norms. Countries that are not parties to the negotiation will likely be asked to accede to the TPP as a condition of bilateral trade agreements with the US and other TPP members, or evaluated against the TPP's copyright enforcement standards in the annual Special 301 process administered by the US Trade Rep.
What You Can Do
Are you in the United States?
Sign this petition directed at Sen. Wyden, calling on him to reject any version of Fast Track (aka Trade Promotion Authority) that does not truly address the secrecy or the private-industry-dominated process. As a long-time defender of digital rights and an outspoken critic of TPP secrecy, we need to let him know that we're counting on him to stand up for Internet users at this critical time.
Tell U.S. lawmakers to stand up for your digital rights and preserve our constitutional checks and balances in government. Demand your state representatives oppose any initiative to enact Fast Track (aka Trade Promotion Authority), which hands their own constitutional authority to debate and modify trade law.
For more information on other aspects of the TPP, visit Public Citizen’s resource page.
Local Actions Around the World
- Si estas en Peru, contacta lo más pronto posible a los bloggeros que se oponen al TPP y a las organizaciones que reclaman transparencia!
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