The US Could Rewrite Foreign Copyright Law with This Sneaky Provision

The Trans-Pacific Partnership (TPP) trade agreement negotiations have resumed, and a troubling provision has come to light. The United States government is using an enhanced version of the provision known as "certification," which allows it to change other countries' domestic obligations at will. This has internet freedom activists worried that the US may enforce draconian copyright laws globally.

So, what is certification? Well, it's rather innocuous albeit ultimately coercive language tailored to trade agreement text, but takes roughly the same basic form each time. As the Electronic Frontier Foundation noted, the US approval of the agreement takes place in two phases.

In the first, Congress approves the overall TPP text. In the second, each country's implementation of the agreement's laws must be certified by the US before TPP takes effect. This is isn't carried out democratically by an independent international party, but by US trade representatives through what is essentially the rewriting of each country's domestic bills.

The US first used certification in 1988 with Canada in the United States Free Trade Agreement (CUSFTA), then again in 1993 in the North American Free Trade Agreement (NAFTA). The language hasn't evolved, but it famously created some dissent in a trade agreement between Chile and the US. Ultimately, Chile refused to make the requested changes in the certification process.

Certification is also found in the the  Bipartisan Trade Priorities Act of 2014. This bill sought to establish Fast Track authority for the TPPA (a fast push through Congress), and included certification language in Sec. 4(a)(2):

CONSULTATIONS PRIOR TO ENTRY INTO FORCE – Prior to exchanging notes providing for the entry into force of a trade agreement, the United States Trade Representative shall consult closely and on a timely basis with Members of Congress and committees as specified in paragraph (1), and keep them fully apprised of the measures a trading partner has taken to comply with those provisions of the agreement that are to take effect on the date that the agreement enters into force.

Similar certification language appeared in the  US government's implementation legislation for the free trade agreement between the US and South Korea:

Conditions for entry into force of the agreement: At such time as the President determines that Korea has taken measures necessary to comply with those provisions of the Agreement that are to take effect on the date on which the Agreement enters into force, the President is authorized to exchange notes with the Government of Korea providing for the entry into force, on or after January 1, 2012, of the Agreement with respect to the United States.

Chile and South Korea aren't the only countries to experience the wrath of certification. Documents released under a Freedom of Information Act request shed light on Peru's experience with the US certification process back in 2008.

Negotiations began with a meeting between US trade representatives and Peruvian officials to discuss modifications to that country's Wildlife and Forestry Law. Subsequent meetings with US officials resulted in the drafting of Peru's DL 1090, which put 45 million hectares of national forest at risk of being converted to agricultural use.

Here is a sampling of how US trade representatives, acting on the directive of the President and Congress, influenced Peru's DL 1090 lawmaking process (obtained via  the FOIA request):

26 September 2008: "Today is the last day of our discussions with the Peruvians this week. Yesterday we agreed to send them comments on the regulations to DL 1090 (Forestry and Wildlife Decree) as soon as possible … . [T]he Peruvians need to have our comments as soon as possible so they can make the necessary changes to the regulations. We also agreed to return to Lima the week of October 27 for a week of meetings … The purpose of this trip is to finalize all of the revisions to the regulations."[3]

27 October 2008: A member of the House Ways and Means committee wanted to discuss with the Deputy Assistant USTR "implementation and in particular the status of the provision that Peru added to 1090 without telling USTR that you have now asked them to remove".[4]

In a letter to Sen. Ron Wyden (D-OR), open internet activists and digital right organizations expressed concern that it could have a negative impact on free speech and each country's vibrant tech communities.

As I noted in past TPP coverage, leaked drafts of the Fast Track bill hint that TPP could also prohibit the temporary storage of works in electronic form. This could mean YouTube videos, which are temporarily stored on a user's computer, might not play properly, but it could create other less predictable effects.

Under other TPP provisions, copyright terms would be extended from the life of the author plus 50 to 70 years. It would also implement a three-strikes policies forcing ISPs to block internet access without any legal conviction of copyright infringement, and force ISPs to filter any content thought to be in violation of copyright law.

And, back in March, GSM Nation's Laure Harrison told me that TPP would almost certainly empower large corporations to pursue innovators and smaller tech players with legal force under copyright protection. In other words, TPP could be a boon for copyright trolls. Certification, as undemocratic as it is, would help the US and its corporate bedfellows pull it all off.

The US deciding when and how to play by international rules is nothing new. But, with the controversy over TPP, one would expect perhaps a modicum of international decency. As Chile proved, certification can be thwarted. It just takes the will of a nation not to buckle under America's economic and military might.