The death of the Trans-Pacific Partnership that EFF called last week has since been confirmed by White House officials. This marks the end of a long-running campaign against the secretive agreement that EFF began back in 2012.
Make no mistake; although the proximate cause of the TPP's demise was the U.S. Presidential election result, the TPP faced long odds in Congress even if the election had gone the other way. This in turn was due to broad opposition to the agreement from many sectors of society across the political divide, including from members of the digital rights community. So as we survey the fallout from the TPP's demise, EFF and its supporters are entitled to feel proud of the part we played.
Implementation In Other TPP Countries
But as we mentioned when breaking news of the death of the TPP, this doesn't mean that the other TPP countries are out of danger yet. In fact only today New Zealand's Parliament passed the implementing legislation required to ratify the TPP, including legislation that would extend the copyright term in New Zealand from 50 to 70 years after the death of the author.
The most dispiriting thing about this is that New Zealand's lawmakers were not ignorant of the fact that they were doing this unilaterally and with no purpose. They knew it, and they did it anyway. This passage from the official transcript of the third reading speech from Labour party member Rino Tirikatene reflects our own frustration with the process:
We are wasting the House's time. I do not know where the National Government has been for the past 24 hours, but there has been an election in the United States, and there is a new President-Elect, Trump, and he has outlined that in his first 100 days, he is withdrawing the US from the Trans-Pacific Partnership (TPP) agreement—a complete withdrawal. I do not know why we are here in some sort of deluded sense that by passing this legislation, the TPP is miraculously going to come into force, because it will not. It is dead—over.
The silver lining in this is that the amendments introduced by the implementation Bill will take effect only from the date that TPP enters into force for New Zealand. If that never happens, then the legislation will never take effect.
Japan, too, has moved closer to ratifying the TPP since we last wrote on the subject. Its ratification bill passed the lower house already, and will automatically take effect on December 9 if the upper house does not act on the bill sooner. Unlike in New Zealand, many of the changes made to Japanese law, including the copyright term extension, are not conditional on the TPP taking effect.
This places Japan at an even higher risk than New Zealand of suffering self-inflicted damage from the TPP that it will never offset through increased U.S. market access. Japan's Aozora Bunko (literally Blue Sky Library, a repository of public domain works) is one national institution that will be particularly hard hit.
Prime Minister Shinzo Abe declared that his government's quixotic commitment to the implementation of the TPP would “show to the world our ability to produce an outcome”, and is even pushing other countries to hasten their own implementation efforts. It may be worth noting that Japan is also the only country that ever ratified the failed Anti-Counterfeiting Trade Agreement (ACTA).
The other country that is closest to ratifying and implementing the TPP, Malaysia, has today released a press statement [PDF] that acknowledges that the TPP has failed, yet does not categorically rule out the continuation of its own progress towards implementing the TPP's mandates through domestic legislation. Vietnam and Australia are in a similar position.
These countries, along with Brunei, Mexico, Singapore, Peru and Chile, ought to accept reality and provide their citizens with some certainty by formally shelving their implementation plans. If they see some symbolic value in continuing with their implementation, then at the very least they should do as New Zealand has done and make this conditional upon the existing TPP agreement coming into effect.
Implications for Other Trade Agreements
Instead of doing this, the remaining TPP countries now led by Mexico and Japan will be using this week's APEC meeting in Lima, Peru to discuss the idea of concluding a TPP agreement without the United States. Since U.S. involvement provided much of the value of the agreement, and the basis for many of the tradeoffs made by the other parties, it is difficult to make sense of this proposal without a significant renegotiation of the text.
In parallel, China is promoting the idea of expanding the Regional Comprehensive Economic Partnership (RCEP) into a broader Free Trade Area of the Asia Pacific (FTAAP), covering all 21 members of the Asia-Pacific Economic Cooperation (APEC) group.
It is difficult to assess what this would mean for digital rights, but we can't see it being good. The RCEP in its present form does contain some provisions on copyright, which are for the most part not as bad as those in the TPP, but this may change before the agreement is done. Since the process of negotiation of RCEP is every bit as closed and opaque as the TPP, we may not find out about how users' rights are being traded away until it is too late.
As for future trade agreements that do include the United States, the next U.S. President Donald Trump has indicated his intention to place more emphasis on concluding bilateral rather than multilateral agreements, as well as on the enforcement of existing agreements. We are unsure of the implications of this for the Trade in Services Agreement (TISA), but they don't look good for its backers.
The problem with a renewed focus on bilateral negotiations is that a single country in negotiation with the United States is far more likely to accept unbalanced copyright demands than it would be if it had the support of ten other countries, as countries did under the TPP. For example, previous bilateral U.S. free trade agreements have required trading partners to extend copyright protection to temporary copies in computer memory; a poison pill for innovators that the TPP countries rightly rejected.
Thus there is much uncertainty in the future around digital trade agreements, and EFF doesn't yet claim to have all the answers. But we can be certain about at least two things: that the TPP will not come into force in its present form, and that in consequence there is no rational reason for any of the countries that negotiated it to change their laws to conform with the agreement.
If you come from Japan, it is especially important for you to get involved with local activists who have the best chance of turning the government back from its misguided mission to implement this doomed agreement. If you come from Australia, Canada, Mexico, Peru, Chile, Singapore, Malaysia, Brunei, or Vietnam, then you can also make a difference by writing to your local newspaper about why TPP implementation is such a bad idea. Here are some links to get you started: