July 11, 2014 | By Jeremy Malcolm and Maira Sutton

TPP Experts Briefing: Informing TPP Negotiators of the Threats of Expanded Copyright Restrictions

Due to the unprecedented secrecy surrounding the Trans-Pacific Partnership (TPP) negotiations taking place this week in Ottawa, there was no formal opportunity to engage with negotiators about the concerns that EFF and many others have expressed—over issues such as the extension of copyright protection by 20 years, and the delegation of ISPs as copyright police with the power to remove content and terminate accounts.

With the alternative of allowing this round of negotiations to proceed without any public input on these important issues (and bearing in mind the maxim “If the mountain won’t come to Muhammad…”), EFF and its partners in the Our Fair Deal coalition decided to hold a side event of our own next to the venue of the negotiations. TPP negotiators were invited to watch keynote talks by two of Canada’s top copyright experts.

 TPP experts briefing in Ottawa, 7-9-2014

In a gratifying indication that the negotiators do remain willing to receive public input into their closed process if given the opportunity to do so, our small room was packed to capacity with 22 negotiators from 9 of the 12 TPP negotiating countries (and those from the other countries that we invited apologised due to another engagement).

The first speaker to present to the assemblage was Howard Knopf, Counsel from Ottawa law firm Macera & Jarzyna, who maintains a widely-read blog titled Excess Copyright. His presentation, for which you can download the slides below, was aptly titled Just Say No to Term Extension—Why More is Less, and explained how term extension takes a toll on the public domain and the many stakeholders who depend upon it, without providing a countervailing benefit to authors or to the economy.

Second to present was well-known Canadian law professor Michael Geist, who focused on the question of ISP or intermediary liability for alleged copyright infringements committed by users. Under U.S. law, ISPs and websites are incentivized to remove material that users upload if a claim of copyright infringement is made. But because many of those claims are false (indeed, many are made by automated systems), such a “notice-and-takedown” regime can stifle freedom of expression, as well as an infringing users’ privacy. This is what U.S. negotiators are putting forward as a template for the TPP.

Michael presented Canada’s “notice-and-notice” regime, which does not result in automatic takedowns or threaten the cancellation of user accounts, as an alternative. Perhaps surprisingly, his presentation (which is also available for download below) also suggested that a notice-and-notice regime could also be extremely effective at deterring ongoing infringement in a large majority of cases.

The third speaker was Reilly Yeo from OpenMedia.ca, an Internet advocacy organisation with a track record of success in mobilizing ordinary users to speak out about threats to the Internet in Canada, which is now reaching out to a broader constituency around the world. Reilly presented results from their Your Digital Future survey, indicating that for most of the more than 60,000 respondents, freedom of expression should be the priority value when designing copyright law.

Finally, Jeremy Malcolm and Maira Sutton from EFF formally released and presented the negotiators with two open letters, endorsed by dozens of businesses and organizations from around the world, including the Wikimedia Foundation, Reddit, Creative Commons, the International Federation of Library Associations (IFLA) and many others. These letters addressed the same two themes as our side event; namely, the dangers associated with the extension of the copyright term, and of appointing ISPs as copyright police.

Even as the TPP negotiations continue to be conducted under ever more secrecy, events like these can help inform negotiators about the risks they take if they concede to restrictive copyright provisions. It is an opportunity to try to improve the language in the agreement, if it comes to the event that this trade agreement passes containing new copyright standards. In the meantime, we are continuing to fight against efforts to include digital policy measures in trade agreements at all—measures that harm and undermine user rights through backdoor, corporate-captured processes.



Howard Knopf Presentation: "Just Say No to Term Extension—Why More is Less"

Michael Geist Presentation: "Notice the Difference: Canada’s Notice-and-Notice Rules"

OpenMedia’s Reilly Yeo Presentation: "Citizen Perspectives on the TPP"

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