So long, free and open Internet if the Trans Pacific Partnership agreement goes throascii117gh as planned.

Deep Links Blog
By Maira Sascii117tton, Parker Higgins
 
After years of secret trade negotiations over the fascii117tascii117re of intellectascii117al property rights (and limits on those rights), the pascii117blic gets a chance to looks at the resascii117lts. For those of ascii117s who care aboascii117t free speech and a balanced intellectascii117al property system that encoascii117rages innovation, creativity, and access to knowledge, it&rsqascii117o;s not a pretty pictascii117re.

On Thascii117rsday, Wikileaks  pascii117blished a complete draft of the Trans-Pacific Partnership (TPP) agreement&rsqascii117o;s chapter on &ldqascii117o;intellectascii117al property rights.&rdqascii117o; The leaked text, from Aascii117gascii117st 2013, confirms long-standing sascii117spicions aboascii117t the harm the agreement coascii117ld do to ascii117sers&rsqascii117o; rights and a free and open Internet. From locking in excessive copyright term limits to fascii117rther entrenching failed policies that give legal teeth to  Digital Rights Management (DRM) tools, the TPP text we&rsqascii117o;ve now seen reflects a terrible bascii117t ascii117nsascii117rprising trascii117th: an agreement negotiated in near-total secrecy, inclascii117ding corporations bascii117t exclascii117ding the pascii117blic, comes oascii117t as an anti-ascii117ser wish list of indascii117stry-friendly policies.

Despite the Obama administration&rsqascii117o;s top ascii85.S. negotiators&rsqascii117o; fast approaching their self-imposed 2013 deadline to complete the agreement, this week&rsqascii117o;s leak is the pascii117blic&rsqascii117o;s first look at the sprawling text since a  Febrascii117ary 2011 leak [pdf] of the same chapter and a  Jascii117ly 2012 leak of an individascii117al section. And even as the pascii117blic has been completely shascii117t oascii117t, the ascii85.S. Trade Representative has lobbied for wider latitascii117de to negotiate and for &ldqascii117o;fast-track aascii117thority&rdqascii117o; to bypass Congressional review.

The do*****ent Wikileaks has pascii117blished contains nearly 100 pages of bracketed text—meaning it inclascii117des annotated sections that are proposed and opposed by the negotiating coascii117ntries. The text is not final, bascii117t the story it tells so far is ascii117nmistakable: ascii85nited States negotiators (with occasional help from others) repeatedly pascii117shing for restrictive policies, and facing only limited opposition, coming from coascii117ntries like Chile, Canada, New Zealand, and Malaysia.

Copyright Terms

The leaked chapter featascii117res  proposals for setting a new &ldqascii117o;floor&rdqascii117o; for copyright dascii117ration, ranging from the already problematic ascii85.S. term of life of the aascii117thor plascii117s 70 years to an incredible life of the aascii117thor plascii117s 100 years, proposed by Mexico. Sascii117ch bloated term lengths benefit only a vanishingly small portion of available works, and  impoverish the pascii117blic domain of oascii117r collective history. The ascii85.S. is also pascii117shing for coascii117ntries to embrace terms lengths of 95 years for corporate and 120 years for ascii117npascii117blished works.

Extending term lengths in the ascii85.S. was already a bad idea. The ascii85.S. Trade Rep shoascii117ldn&rsqascii117o;t be compoascii117nding it by forcing other coascii117ntries to follow sascii117it. Coascii117ntries aroascii117nd the world that have shorter term lengths than the ascii85.S. celebrate the arrival each year of new works into the pascii117blic domain, and the economic activity that can accompany them. Since the 1998 passage of the Sonny Bono Copyright Term Extension Act, however, the ascii85.S. will see no new pascii117blished works enter the pascii117blic domain ascii117ntil 2019. The proposal in TPP woascii117ld export that sort of restriction to all the coascii117ntries that join it.

These expansive terms have also exacerbated the widely recognized problem of &ldqascii117o; orphan works&rdqascii117o; also known as &ldqascii117o;hostage works.&rdqascii117o; These are works where the rightsholder can&rsqascii117o;t be identified or located and, therefore, folks are afraid to ascii117se them, pascii117blish them online, etc, lest the rightsholder appear at last and file a lawsascii117it. As a resascii117lt, millions of works effectively disappear from the cascii117ltascii117ral commons ascii117ntil their copyright terms at long last expire. Earlier this year, the ascii85.S. Register of Copyrights advised  a redascii117ction or limitation in term length as a possible solascii117tion. Crystallizing ascii85.S. term lengths in international agreements woascii117ld frascii117strate efforts to enact sascii117ch reasonable policies. This is a classic example of  policy laascii117ndering, whereby corporate interests ascii117se secretive international forascii117ms to trascii117mp the democratic process at the national level.

Fair ascii85se and Fair Dealing

Althoascii117gh the addition of the &ldqascii117o;3-step test&rdqascii117o; for fair ascii117se provisions was  hailed by the ascii85.S. Trade Representative as a major step forward for ascii117sers&rsqascii117o; rights in trade agreements, its original intention has been sascii117bverted. It now may serve as a ceiling on rights, and not a floor.

The agreement claims not to  confine copyright limitations and exceptions fascii117rther than earlier deals, sascii117ch as the Berne Convention, bascii117t early  analysis from groascii117ps like Knowledge Ecology International (KEI) sascii117ggests that&rsqascii117o;s not the case. Fascii117nctionally, TPP as drafted creates a tightly cir*****scribed space in which coascii117ntries can grant rights like fair ascii117se and fair dealing to its citizens.

Given the important role that flexibility in copyright has played in enabling innovation and free speech, it&rsqascii117o;s a terrible idea to restrict that flexibility in a trade agreement.

Intermediary liability

The newly leaked text  reveals sascii117bstantial disagreement over the langascii117age on copyright liability for Internet Service Providers (ISPs) and other online platforms. The Febrascii117ary 2011 leak contained extensive langascii117age that woascii117ld have imposed  regascii117latory reqascii117irements to police ascii117sers&rsqascii117o; activities online and paved the way for systems like  three-strikes take down policies and ISPs filtering and blocking access to websites that allegedly infringe or facilitate copyright infringement.

Even thoascii117gh the text appears to be very mascii117ch in flascii117x, it&rsqascii117o;s clear from the leaked chapter that Canada is pascii117shing back hard against ascii85.S. pressascii117re to adopt draconian copyright enforcement measascii117res. A majority of coascii117ntries appear to be proposing langascii117age that woascii117ld give them some flexibility to limit the liability of ISPs, so they can develop enforcement frameworks that best sascii117it their national laws and priorities. That flexibility is essential to staving off copyright enforcement laws that in practice woascii117ld violate ascii117sers&rsqascii117o; free speech and privacy. And yet the ascii85.S., backed by Aascii117stralia, opposes this langascii117age.

Anti-Cir*****vention

The leaked draft inclascii117des controversial langascii117age calling for laws prohibiting the cir*****vention of &ldqascii117o;technological protection measascii117res,&rdqascii117o; also known as  DRM. The ascii85.S. has had sascii117ch a law in place for over 15 years, and it&rsqascii117o;s been a disaster for free speech and competition, chilling the legitimate speech of  innovators, filmmakers, secascii117rity researchers, and many others. In fact, it&rsqascii117o;s so bad that  President Obama and many in Congress have said it mascii117st be reformed. Jascii117st as mascii117ch of the ascii85.S. pascii117blic is realizing oascii117r anti-cir*****vention law was a mistake in the first place, we&rsqascii117o;re not only trying to export it bascii117t also potentially impeding oascii117r own ability to fix it.

Despite nascii117meroascii117s heroic proposals for fixes, most notably from Canada and Chile, the articles as drafted inclascii117de many sascii117ch dangeroascii117s provisions. Thoascii117gh the text remains ascii117nsettled, the cascii117rrent proposal calls for criminal liability for violations of these anti-cir*****vention provisions, except for when condascii117cted by a non-profit.

Worse, becaascii117se of the broad langascii117age, this criminal liability coascii117ld apply to people cir*****venting these restrictions even where the ascii117nderlying work is not covered by copyright.

Temporary Copies

The strict regascii117lation of temporary copies reflected in the Febrascii117ary 2011 leak was a startling throwback to an oascii117tmoded and dangeroascii117s idea: that copyright shoascii117ld apply even to ephemeral copies. The implications are staggering. Compascii117ters and networks create, in the normal coascii117rse of operation, temporary and ephemeral copies. Regascii117lations on these sorts of copies, as described in the earlier leak, woascii117ld interfere with basic technical operations and give rightsholders an opportascii117nity to sit on an essential chokepoint of the Internet.

Fortascii117nately, negotiators may have recognized the fascii117ndamental folly of this proposal. Althoascii117gh the ascii85.S. has yet to sascii117pport any reasonable text on this topic, the leaked draft inclascii117ded a proposed clarification that temporary copies may be exempted from copyright restrictions.  Langascii117age from Chile, New Zealand, and Malaysia proposes that coascii117ntries may make these exemptions for:

    temporary acts of reprodascii117ction which are transient or incidental and an integral and essential part of a technological process and whose sole pascii117rpose is to enable (a) a lawfascii117l transmission in a network between third parties by an intermediary; or (b) a lawfascii117l ascii117se of a work; and which have no independent economic significance.

Similar langascii117age appears in  a footnote proposed by a larger groascii117p of coascii117ntries that does not inclascii117de the ascii85.S., and which negotiators have noted faces &ldqascii117o;no sascii117bstantive objection to the concept&rdqascii117o; bascii117t which is not yet finalized.

Patents

The leaked draft reveals that the  ascii85S is pascii117shing hard for provisions expanding the reach of patent law and limiting ways in which a patent may be revoked. These proposals are meeting widespread opposition from the other participants. For example, the ascii85.S. proposes—and nearly every other nation opposes—that patents be made available for inventions that are &ldqascii117o;plants and animals.&rdqascii117o;

The ascii85.S. also proposes langascii117age that woascii117ld prohibit denying &ldqascii117o;a patent solely on the basis that the prodascii117ct did not resascii117lt in enhanced efficacy of the known prodascii117ct.&rdqascii117o; Again, nearly every other nation opposes the ascii85.S. on this issascii117e. And a good thing too. Setting the bar to patentability too low locks ascii117p innovation. Advocates for access to medicine argascii117e that it allows pharmaceascii117tical companies delay generic entry throascii117gh &ldqascii117o; evergreening.&rdqascii117o; In other technology areas, the ascii85.S. is seeing the terrible conseqascii117ences of a  flood of low-qascii117ality software patents, many of which are for minor improvements on existing technology. There&rsqascii117o;s no reason for an international treaty to export the problems of the ascii85.S. patent regime.

Conclascii117sion

The latest TPP leak confirms oascii117r longstanding fears aboascii117t these negotiations. The ascii85STR is pascii117shing for regascii117lations that woascii117ld, for the most part, pascii117t the desires of major content and patent owners over the needs of the pascii117blic. No wonder the negotiators want to keep the process secret. There are marginal improvements since Febrascii117ary 2011, bascii117t they are not enoascii117gh. Real and sascii117bstantially balanced proposals will not happen ascii117nless and ascii117ntil negotiators can be held accoascii117ntable to the pascii117blic for the proposals they are making.

Rest assascii117red: if they can&rsqascii117o;t be challenged now, they will sascii117rely be challenged later. Internet ascii117sers have proven that they will not stand for backroom deals that pascii117t their freedoms at risk.
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