The Trans-Pacific Partnership agreement (TPP) has sparked much debate over its many chapters, but many discussions have thus far overlooked the serious consequences the TPP’s copyright provisions could have for internet freedom and emerging technologies.
Those who have been following the TPP negotiations know the TPP is a trade agreement currently being negotiated by the United States and eight other countries bordering the Pacific Ocean that holds major implications concerning international copyright law. Excessive copyright protections in the TPP would not only affect producers and distributors of content, but also stifle the ability of technology companies to make products that can be used to copy, store, access, use, and repurpose copyrighted works, and threaten users’ ability to utilize digital technology to use content in new ways.
Before any public interest advocate can begin a meaningful analysis of the TPP, it is important to note that the TPP has been negotiated under shocking levels of secrecy, so consumer advocates can only rely on outdated leaks of the text to evaluate the public harms the TPP would cause. While the U.S. Trade Representative has been willing to receive comment from the public, meaningful transparency cannot exist until the USTR publicly responds to public interest groups’ analysis, or officially confirms what negotiating objectives the USTR is seeking in negotiations.
Some say the USTR must operate in secrecy to achieve its negotiating goals, but this is cold comfort if the provisions the USTR secretly seeks would stifle internet freedom or user rights and fail to actually incentivize new creative works. The TPP copyright provisions in particular are not limited to provisions on trade and tariffs—they would require countries to implement detailed substantive provisions of copyright law, which affects users, technology companies, and creators alike. These provisions are much more akin to domestic legislation than they are to trade quotas or tariffs, and therefore the process and substance of the TPP should be as transparent as we expect domestic legislation to be. Otherwise, consumers will be in a position with little time to act and with little information to act on. The public should be involved in these conversations that may decide the fate of the world’s most innovative communicative resources.
Without any access to official negotiating texts or positions, it is difficult to know the full extent of the harms the TPP’s copyright provisions may pose to the public interest. But based on a leaked U.S. proposal from February 2011, Public Knowledge can identify a number of proposals or likely proposals that would have serious consequences for consumers and should be changed or removed entirely. Of course, the actual text of the TPP may be far worse than what we estimate, but it is impossible to know until the text is released to the public.
Based on leaks of the TPP proposals and past trade agreements, a number of likely copyright provisions in the TPP could threaten internet freedom and thwart emerging new technologies that would otherwise contribute significant economic value to the negotiating countries. For example, one leaked TPP proposal from the U.S. would grant copyright owners power over “buffer copies”—the temporary copies that computers need to make in the process of moving data around. With buffer copy protection, many more transactions would require a license from the copyright owner and many more uses would expose consumers to liability.
The TPP would also prevent users from breaking technological protection measures, even if users intend to make non-infringing uses of the protected work. The TPP would not only require this additional level of restriction beyond those already created by copyright law itself, but would tie member countries’ hands from creating new permanent exceptions to those restrictions based on evolving social need and market practices. For example, if the U.S. wanted to create an exception that permits circumvention for lawful uses, it would be in violation of the TPP.
The TPP also threatens to criminalize small-scale copyright infringement, which would, for example, make downloading music for personal use a crime instead of simply making the user liable for damages to the copyright owner. Police could then seize the accused’s computer as a device aiding the offense and send the end-user to jail for downloading. It should be noted here that the TPP’s criminal rules go beyond current U.S. law and would impose similar rules on other countries.
The TPP would encourage ISPs to institute measures like “three strikes”—which kicks users off their internet connection after three infringement accusations—and deep packet inspection. This promotes a system in which the punishment is wildly out of proportion to the offense, and would prevent those accused of infringement from using their internet connection for any purpose—including normal communications and commerce.
Finally, the TPP proposals for limitations and exceptions to this over-expansive copyright system would not actually create balance itself, but would actually restrict what limitations and exceptions a member country could enact. But limitations and exceptions to copyright—like fair use, the first sale doctrine, and compulsory licenses—not only leave room for free speech and cultural participation, but enable companies to utilize innovative new technologies and platforms the ultimately contribute to a country’s economy.
Platforms like search engines, online re-sale forums, and tools to create and distribute user-generated content create immense economic and social value, but can be threatened by incumbent companies that seek to leverage copyright provisions anticompetitively to prevent market entrants that threaten their 20th century business models. Indulging these anticompetitive efforts is no way to build a thriving marketplace, nor to develop a robust and creative culture. The TPP negotiators have a responsibility to seriously examine and consider the economic and social costs of overreaching copyright, and ensure that the TPP does not restrict economic and cultural growth for its member nations.
Gigi Sohn is the President and Co-Founder of Public Knowledge, a nonprofit organization that seeks to ensure that our communications system promotes fundamental democratic principles and cultural values including openness, access, and the capacity to create and compete. Jodie Griffin is a Staff Attorney at Public Knowledge, and previously worked in the music industry.
This article was originally published in the special annual G8 Summit 2013 edition and The Official ICC G20 Advisory Group Publication. Published with permission.
Photo: Thomas Rawyler (cc).
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The Costs of Copyright in the TPP
June 28, 2013
The Trans-Pacific Partnership agreement (TPP) has sparked much debate over its many chapters, but many discussions have thus far overlooked the serious consequences the TPP’s copyright provisions could have for internet freedom and emerging technologies.
Those who have been following the TPP negotiations know the TPP is a trade agreement currently being negotiated by the United States and eight other countries bordering the Pacific Ocean that holds major implications concerning international copyright law. Excessive copyright protections in the TPP would not only affect producers and distributors of content, but also stifle the ability of technology companies to make products that can be used to copy, store, access, use, and repurpose copyrighted works, and threaten users’ ability to utilize digital technology to use content in new ways.
Before any public interest advocate can begin a meaningful analysis of the TPP, it is important to note that the TPP has been negotiated under shocking levels of secrecy, so consumer advocates can only rely on outdated leaks of the text to evaluate the public harms the TPP would cause. While the U.S. Trade Representative has been willing to receive comment from the public, meaningful transparency cannot exist until the USTR publicly responds to public interest groups’ analysis, or officially confirms what negotiating objectives the USTR is seeking in negotiations.
Some say the USTR must operate in secrecy to achieve its negotiating goals, but this is cold comfort if the provisions the USTR secretly seeks would stifle internet freedom or user rights and fail to actually incentivize new creative works. The TPP copyright provisions in particular are not limited to provisions on trade and tariffs—they would require countries to implement detailed substantive provisions of copyright law, which affects users, technology companies, and creators alike. These provisions are much more akin to domestic legislation than they are to trade quotas or tariffs, and therefore the process and substance of the TPP should be as transparent as we expect domestic legislation to be. Otherwise, consumers will be in a position with little time to act and with little information to act on. The public should be involved in these conversations that may decide the fate of the world’s most innovative communicative resources.
Without any access to official negotiating texts or positions, it is difficult to know the full extent of the harms the TPP’s copyright provisions may pose to the public interest. But based on a leaked U.S. proposal from February 2011, Public Knowledge can identify a number of proposals or likely proposals that would have serious consequences for consumers and should be changed or removed entirely. Of course, the actual text of the TPP may be far worse than what we estimate, but it is impossible to know until the text is released to the public.
Based on leaks of the TPP proposals and past trade agreements, a number of likely copyright provisions in the TPP could threaten internet freedom and thwart emerging new technologies that would otherwise contribute significant economic value to the negotiating countries. For example, one leaked TPP proposal from the U.S. would grant copyright owners power over “buffer copies”—the temporary copies that computers need to make in the process of moving data around. With buffer copy protection, many more transactions would require a license from the copyright owner and many more uses would expose consumers to liability.
The TPP would also prevent users from breaking technological protection measures, even if users intend to make non-infringing uses of the protected work. The TPP would not only require this additional level of restriction beyond those already created by copyright law itself, but would tie member countries’ hands from creating new permanent exceptions to those restrictions based on evolving social need and market practices. For example, if the U.S. wanted to create an exception that permits circumvention for lawful uses, it would be in violation of the TPP.
The TPP also threatens to criminalize small-scale copyright infringement, which would, for example, make downloading music for personal use a crime instead of simply making the user liable for damages to the copyright owner. Police could then seize the accused’s computer as a device aiding the offense and send the end-user to jail for downloading. It should be noted here that the TPP’s criminal rules go beyond current U.S. law and would impose similar rules on other countries.
The TPP would encourage ISPs to institute measures like “three strikes”—which kicks users off their internet connection after three infringement accusations—and deep packet inspection. This promotes a system in which the punishment is wildly out of proportion to the offense, and would prevent those accused of infringement from using their internet connection for any purpose—including normal communications and commerce.
Finally, the TPP proposals for limitations and exceptions to this over-expansive copyright system would not actually create balance itself, but would actually restrict what limitations and exceptions a member country could enact. But limitations and exceptions to copyright—like fair use, the first sale doctrine, and compulsory licenses—not only leave room for free speech and cultural participation, but enable companies to utilize innovative new technologies and platforms the ultimately contribute to a country’s economy.
Platforms like search engines, online re-sale forums, and tools to create and distribute user-generated content create immense economic and social value, but can be threatened by incumbent companies that seek to leverage copyright provisions anticompetitively to prevent market entrants that threaten their 20th century business models. Indulging these anticompetitive efforts is no way to build a thriving marketplace, nor to develop a robust and creative culture. The TPP negotiators have a responsibility to seriously examine and consider the economic and social costs of overreaching copyright, and ensure that the TPP does not restrict economic and cultural growth for its member nations.
Gigi Sohn is the President and Co-Founder of Public Knowledge, a nonprofit organization that seeks to ensure that our communications system promotes fundamental democratic principles and cultural values including openness, access, and the capacity to create and compete. Jodie Griffin is a Staff Attorney at Public Knowledge, and previously worked in the music industry.
This article was originally published in the special annual G8 Summit 2013 edition and The Official ICC G20 Advisory Group Publication. Published with permission.
Photo: Thomas Rawyler (cc).
