The Trans-Pacific Patrnership Is Still an Enemy to the Internet

Early analysis of the latest Wikileaks draft text of the Trans-Pacific Partnership's intellectual property (IP) chapter quite convincingly shows that, like past leaks of the trade deal, the TPP will still hurt the internet, starve the public domain of great works of art, and chill the emergent maker movement with harsher, American-style, copyright laws.

Readers may remember the TPP as a 12-country trade deal being negotiated in secret. It's previously been described as threatening to the internet, the environment, national sovereignty, and access to lifesaving drugs for the poor.

Compared to previous rounds of trade negotiations at the WTO, which have been much more transparent, most of the publicly available information has come not from governments, but leaks.

The latest of these is yesterday's IP chapter dating from May 2014. That means some of what we're seeing could already be outdated. Still, the document is a useful and credible source of information—and it's the best we've got for onlookers keen to understand a covert, international trade negotiation.

Early responses to the leaks haven't been kind to the chapter. James Love from public-interest group Knowledge Ecology International wrote the US is seeking aggressively intellectual property norms that, "favor big corporate right holders, and undermine the public's freedom to use knowledge."

There's a lot to unpack in the 77-page leak, but let's focus on the internet. Previous leaked drafts of the TPP showed internet users' privacy (and pocketbooks) being threatened by language making internet service providers (defined loosely enough to include cafes, libraries, and universities) liable for copyright infringement by users on their networks.

Alberto Cerda from Chilean digital rights organization Derechos Digitales writes that the TPP's language encourages ISP and network provider monitoring of user activity, which could mean monitoring agreements between large rights holders like Disney and ISP's to search for and take down infringing content.

This notice-and-takedown process is the copyright equivalent of 'shoot first, ask questions later,' and it's already led to thousands, if not millions, of illegitimate takedowns of legal content under the US DMCA laws. Canada, for its part, appears to be leading the charge against this heavy-handed approach, arguing forcefully for its homegrown system of giving notice to copyright offenders, which has so far worked very well without threatening free expression online.

Staying true to its historic role as a good-natured international actor, Canada has also been pushing back against US-led definitions of criminal copyright infringement. While America would have non-commercial infringement defined as criminal, Canada would only apply criminal penalties if internet users are actively seeking profit from their infringement.

Internet activist, RSS developer, and reddit co-founder Aaron Swartz was hounded by the US department of Justice for his massive upload of copyrighted academic works from online repository JSTOR until he committed suicide after being threatened with up to 35 years in jail.

Swartz had not sought financial gain from the upload—rather, it was very much a political act and commentary on the freedom of publicly-funded knowledge. If Canada backs down and the US gets its way, more people could face harsh penalties for similar non-commercial breaches of the rules.

Internet users and journalists could also face ramped-up criminal penalties for accessing or disclosing "trade secrets" without authorization under new language in the TPP.

At first, it appears that there are protections for free speech in Article QQ.H.8.3, but upon further reading, it's clear that any meaningful journalism that discloses a "trade secret" could easily be described as "intended to injure the owner of such a trade secret, detrimental to a Party's economic interests, international relations…or national security."

Apart from criminal penalties, the TPP is also poised to export US-style copyright trolling around the Pacific. In Addendum III of the leaked text, we can read that:

Another setback from the previous leaked version is the negotiation over copyright term length—that is, the length of time a creator or company may hold exclusive rights to a work like a book, movie, or song. In the previous version, countries had flexibility over the time period for the work's protection. In this version, there will be a set minimum—and it appears countries are still deciding between 50, 70, or 100 years after the author's death.

The problem with long copyright terms is that they impoverish the public domain while creating economic inefficiency. There's little sense in continuing to reward the creator of a work after he or she dies, since it's not going to do much to motivate them to create better works.

Finally, the TPP promises to export the United States' overly harsh anti-circumvention policy on digital rights management (DRM). This is the kind of technology that prevents us from transferring DVD movies to our computer, ebooks to our phones, and installing new operating systems on our video game consoles. These technologies largely fail to prevent piracy and simply inconvenience rightful product owners. They're a slap in the face to the principle of "I bought it, I own it" since they impede innocent tinkering, hacking, and innovation.

The TPP does provide exceptions to penalties for circumventing DRM on devices for innocent uses (like text-to-speech for the blind) "as determined through a legislative, regulatory or administrative process," but this simply doesn't offer enough freedom to well-meaning makers. Most normal people believe that we should have control over the things we own—and governments should listen to them.

Thankfully, the TPP text as leaked shows some countries, like Canada, resisting many of the most extreme proposals on ISP liability, copyright term, and DRM. But as we've seen in the past, negotiating positions can change. Here's hoping that Canada and others won't cave to American pressure.

In other words, diplomacy will likely determine whether or not you can rip video files from DVDs or report on a leaked government trade secret—without going to jail.

Christopher Malmo is a grassroots development coordinator at OpenMedia.ca. Follow him on Twitter: @chrismalmo