http://www.truth-out.org/news/item/33198-the-final-leaked-tpp-text-is-all-that-we-feared
The Final Leaked TPP Text Is All That We Feared
Monday, 12 October 2015 00:00
By Jeremy Malcolm, Electronic Frontier Foundation | News Analysis
Last week's release by Wikileaks of what is believed to be the current
and essentially final version of the intellectual property (IP) chapter
of the Trans-Pacific Partnership (TPP) confirms our worst fears about
the agreement, and dashes the few hopes that we held out that its most
onerous provisions wouldn't survive to the end of the negotiations.
Since we now have the agreed text, we'll be including some paragraph
references that you can cross-reference for yourself - but be aware that
some of them contain placeholders like "x" that may change in the
cleaned-up text. Also, our analysis here is limited to the copyright and
Internet-related provisions of the chapter, but analyses of the impacts
of other parts of the chapter have been published by Wikileaks and others.
Binding Rules for Rightsholders, Soft Guidelines for Users
If you skim the chapter without knowing what you're looking for, it may
come across as being quite balanced, including references to the need
for IP rules to further the "mutual advantage of producers and users"
(QQ.A.X), to "facilitate the diffusion of information" (QQ.A.Z), and
recognizing the "importance of a rich and accessible public domain"
(QQ.B.x). But that's how it's meant to look, and taking this at face
value would be a big mistake.
If you dig deeper, you'll notice that all of the provisions that
recognize the rights of the public are non-binding, whereas almost
everything that benefits rightsholders is binding. That paragraph on the
public domain, for example, used to be much stronger in the first leaked
draft, with specific obligations to identify, preserve and promote
access to public domain material. All of that has now been lost in favor
of a feeble, feel-good platitude that imposes no concrete obligations on
the TPP parties whatsoever.
Another, and perhaps the most egregious example of this bias against
users is the important provision on limitations and exceptions to
copyright (QQ.G.17). In a pitifully ineffectual nod towards users, it
suggests that parties "endeavor to achieve an appropriate balance in its
copyright and related rights system," but imposes no hard obligations
for them to do so, nor even offers U.S.-style fair use as a template
that they might follow. The fact that even big tech was ultimately
unable to move the USTR on this issue speaks volumes about how utterly
captured by Hollywood the agency is.
Expansion of Copyright Terms
Perhaps the biggest overall defeat for users is the extension of the
copyright term to life plus 70 years (QQ.G.6), despite a broad consensus
that this makes no economic sense, and simply amounts to a transfer of
wealth from users to large, rights-holding corporations. The extension
will make life more difficult for libraries and archives, for
journalists, and for ordinary users seeking to make use of works from
long-dead authors that rightfully belong in the public domain.
Could it have been worse? In fact, yes it could have; we were spared a
120 year copyright term for corporate works, as earlier drafts
foreshadowed. In the end corporate works are to be protected for 70
years after publication or performance, or if they are not published
within 25 years after they were created, for 70 years after their
creation. This could make a big difference in practice. It means that
the film Casablanca, probably protected in the United States until 2038,
would already be in the public domain in other TPP countries, even under
a life plus 70 year copyright term.
New to the latest text are the transition periods in Section J, which
allow some countries a longer period for complying with some of their
obligations, including copyright term. For example, Malaysia has been
allowed two years to extend its copyright term to life plus 70 years.
For Vietnam, the transition period is five years. New Zealand is the
country receiving the most "generous" allowance; its term will increase
to life plus 60 years initially, rising to the full life plus 70 year
term within eight years. Yet Canada, on the other hand, has not been
given any transition period at all.
Ban on Circumventing Digital Rights Management (DRM)
The provisions in QQ.G.10 that prohibit the circumvention of DRM or the
supply of devices for doing so are little changed from earlier drafts,
other than that the opposition of some countries to the most onerous
provisions of those drafts was evidently to no avail. For example, Chile
earlier opposed the provision that the offense of DRM circumvention is
to be "independent of any infringement that might occur under the
Party's law on copyright and related rights," yet the final text
includes just that requirement.
The odd effect of this is that someone tinkering with a file or device
that contains a copyrighted work can be made liable (criminally so, if
wilfullness and a commercial motive can be shown), for doing so even
when no copyright infringement is committed. Although the TPP text does
allow countries to pass exceptions that allow DRM circumvention for
non-infringing uses, such exceptions are not mandatory, as they ought to be.
The parties' flexibility to allow DRM circumvention also requires them
to consider whether rightsholders have already taken measures to allow
those non-infringing uses to be made. This might mean that rightsholders
will rely on the walled-garden sharing capabilities built in to their
DRM systems, such as Ultraviolet, to oppose users being granted broader
rights to circumvent DRM.
Alongside the prohibition on circumvention of DRM is a similar
prohibition (QQ.G.13) on the removal of rights management information,
with equivalent civil and criminal penalties. Since this offense is,
once again, independent of the infringement of copyright, it could
implicate a user who crops out an identifying watermark from an image,
even if they are using that image for fair use purposes and even if they
otherwise provide attribution of the original author by some other means.
The distribution of devices for decrypting encrypted satellite and cable
signals is also separately proscribed (QQ.H.9), posing a further hazard
to hackers wishing to experiment with or to repurpose broadcast media.
Criminal Enforcement and Civil Damages
On damages, the text (QQ.H.4) remains as bad as ever: rightsholders can
submit "any legitimate measure of value" to a judicial authority for
determination of damages, including the suggested retail price of
infringing goods. Additionally, judges must have the power to order
pre-established damages (at the rightsholder's election), or additional
damages, each of which may go beyond compensating the rightsholder for
its actual loss, and thereby create a disproportionate chilling effect
for users and innovators.
No exception to these damages provisions is made in cases where the
rightsholder cannot be found after a diligent search, which puts the
kibosh on ideas for the introduction of an orphan works regime that
would cap remedies available against those who reproduce these
otherwise-unavailable works.
One of the scariest parts of the TPP is that not only can you be made
liable to fines and criminal penalties, but that any materials and
implements used in the creation of infringing copies can also be
destroyed (QQ.H.4(12)). The same applies to devices and products used
for circumventing DRM or removing rights management information
(QQ.H.4(17)). Because multi-use devices such as computers are used for a
diverse range of purposes, this is once again a disproportionate
penalty. This could lead to a family's home computer becoming seized
simply because of its use in sharing files online, or for ripping
Blu-Ray movies to a media center.
In some cases (QQ.H.7), the penalties for copyright infringement can
even include jail time. Traditionally, this has because the infringer is
operating a business of commercial piracy. But under the TPP, any act of
willful copyright infringement on a commercial scale renders the
infringer liable to criminal penalties, even if they were not carried
out for financial gain, provided that they have a substantial
prejudicial impact on the rightsholder. The copying of films that are
still playing in movie theaters is also subject to separate criminal
penalties, regardless of the scale of the infringement.
Trade Secrets
The severity of the earlier language on trade secrets protection has not
been abated in the final text. It continues to criminalize those who
gain "unauthorized, willful access to a trade secret held in a computer
system," without any mandatory exception for cases where the information
is accessed or disclosed in the public interest, such as by
investigative journalists or whistleblowers.
There is no evident explanation for the differential treatment given to
trade secrets accessed or misappropriated by means of a computer system,
as opposed to by other means; but it is no surprise to find the U.S.
pushing such a technophobic provision, which mirrors equivalent
provisions of U.S. law that have been used to persecute hackers for
offenses that would otherwise have been considered much more minor.
Top-Down Control of the Internet
ICANN, the global domain name authority, provoked a furore earlier this
year over proposals that could limit the ability for owners of domain
names to shield their personal information from copyright and trademark
trolls, identity thieves, scammers and harassers.
The TPP has just ridden roughshod over that entire debate (at least for
country-code top-level domains such as .us, .au and .jp), by cementing
in place rules (QQ.C.12) that countries must provide "online public
access to a reliable and accurate database of contact information
concerning domain-name registrants."
The same provision also requires countries to adopt an equivalent to
ICANN's flawed Uniform Domain-Name Dispute Resolution Policy (UDRP),
despite the fact that this controversial policy is overdue for a formal
review by ICANN, which might result in the significant revision of this
policy. Where would this leave the TPP countries, that are locked in to
upholding a UDRP-like policy for their own domains for the indefinite
future?
The TPP's prescription of rules for domain names completely disregards
the fact that most country code domain registries have their own, open,
community-driven processes for determining rules for managing domain
name disputes. More than that, this top-down rulemaking on domain names
is in direct contravention of the U.S. administration's own
firmly-stated commitment to uphold the multi-stakeholder model of
Internet governance. Obviously, Internet users cannot trust the
administration that it means what it says when it gives lip-service to
multi-stakeholder governance - and that has ramifications that go even
even deeper than this terrible TPP deal.
ISP Liability
The provisions on ISP liability (Appendix Section I), as we previously
found in the last leaked text, are not quite as permissive as we hoped.
It will still require most countries to adopt a version of the flawed
U.S. DMCA notice-and-takedown system, albeit with a few safeguards such
as penalties for those who issue wrongful takedown notices, and allowing
(but not requiring) a Japanese-style system of verification of takedown
notices by an independent body of ISPs and rightsholders.
It is true that Canada's notice-and-notice regime is also allowed, but
effectively only for Canada - no other country that did not have an
equivalent system as of the date of the agreement is allowed to benefit
from that flexibility. Even in Canada's case, this largesse is only
afforded because of the other enforcement measures that rightsholders
enjoy there - such as a tough regime of secondary liability for
authorization of copyright infringement.
Similarly Chile's system under which ISPs are not required to take down
content without a judicial order is explicitly grandfathered in, but no
other country joining the TPP in the future will be allowed to have a
similar system.
In addition, although there is no explicit requirement for a graduated
response regime of copyright penalties against users, ISPs are still
roped in as copyright enforcers with the vague requirement (Appendix
Section 1) that they be given "legal incentives…to cooperate with
copyright owners to deter the unauthorized storage and transmission of
copyrighted materials or, in the alternative, to take other action to
deter the unauthorized storage and transmission of copyright materials".
Good Points?
Quite honestly there are no parts of this agreement that are positively
good for users. Of course, that doesn't mean that it's not improved over
the earlier, horrendous demands of the U.S. negotiators. Some of the
areas in which countries rightly pushed back against the U.S., and which
are reflected in the final text are:
The exhaustion of rights provision (QQ.A.11) that upholds the first
sale doctrine of U.S. law, preventing copyright owners from extending
their control over the resale of copyright works once they have first
been placed in the market. In particular, this makes parallel
importation of cheaper versions of copyright works lawful - and
complementing this is an explicit authorization of devices that bypass
region-coding on physical copies of such works (QQ.G.10, though this
does not extend to bypassing geoblocking of streaming services).
A thoroughly-misguided provision that would have extended copyright
protection to temporary or "buffer" copies in a computer system was one
of the earliest rightsholder demands dropped by the USTR, and rightfully
so, given the damage this would have wreaked to tech companies and users
alike.
But we have struggled to come up with more than two positive points
about the TPP, and even then the absence of these tragic mistakes is a
pretty poor example of a positive point. If you look for provisions in
the TPP that actually afford new benefits to users, rather than to
large, rights-holding corporations, you will look in vain. The TPP is
the archetype of an agreement that exists only for the benefit of the
entitled, politically powerfully lobbyists who have pushed it through to
completion over the last eight years.
There is nothing in here for users and innovators to support, and much
for us to fear - the ratcheting up of the copyright term across the
Pacific rim, the punitive sanctions for DRM circumvention, and the full
frontal attack on hackers and journalists in the trade secrets
provision, just to mention three. This latest leak has confirmed our
greatest fears - and strengthened our resolve to kill this agreement for
good once it reaches Congress.
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