TPP: One More Attempt to End Internet Freedom after Failed SOPA/PIPA
TPP or Trans Pacific Partnership is a new legal structure being negotiated between various governments and multinational corporations in extreme secrecy. The secrecy is possibly a reaction of failure of SOPA/PIPA due to public outcry. Only way to know about TPP is through leaks, and some of those leaks show that the new legal structure will go far beyond what SOPA/PIPA. There will be all fun elements, including secret (i.e. ‘closed door’) courts controlled by large corporations to settle IP disputes, courts with power beyond national court systems, end of internet freedom, IP rights titled toward large media companies and multinationals.
Electronic Frontier Foundation writes -
TPP Leak Confirms the Worst: US Negotiators Still Trying to Trade Away Internet Freedoms
After years of secret trade negotiations over the future of intellectual property rights (and limits on those rights), the public gets a chance to looks at the results. For those of us who care about free speech and a balanced intellectual property system that encourages innovation, creativity, and access to knowledge, its not a pretty picture.
Today Wikileaks published a complete draft of the Trans-Pacific Partnership (TPP) agreements chapter on intellectual property rights. The leaked text, from August 2013, confirms long-standing suspicions about the harm the agreement could do to users rights and a free and open Internet. From locking in excessive copyright term limits to further entrenching failed policies that give legal teeth to Digital Rights Management (DRM) tools, the TPP text weve seen today reflects a terrible but unsurprising truth: an agreement negotiated in near-total secrecy, including corporations but excluding the public, comes out as an anti-user wish list of industry-friendly policies.
Hacker News has a thread discussing the issues, and one reader summarized the implications:
Like I mentioned in the other thread on the TPP Leak, the TPP could immediately have the following effects, if it is enacted into law by the participating nations. I picked the ones you would most likely notice:
1. 3-strikes laws in all participating nations. Note that the US and France have already effectively abandoned their attempted three-strikes laws [1] [2] [3], but would likely reinstate them.
2. dvdcss and UEFI Secure Boot circumvention (including shim loaders) will become illegal in enough countries to have chilling effects on open source innovation
3. significant extension of patents for medication, increasing healthcare costs
4. additional regulation of internet backbone providers to perform deep packet inspection for government investigation of copyright infringement. This would use taxpayer dollars to enforce dying copyright regimes. I assume governments would be delighted to have justification to tap the internet at backbones.
5. End of works entering the public domain. Copyright term extensions are likely just as the US has done, so the public domain may not see new additions for a long time.
I want to mention the significant curtailing of fair use in Europe, which would train young artists not to remix or reuse others’ ideas. However, it might take up to 5 years to feel the effects.
NakedCapitalism blog provided this summary:
The TPP, if Passed, Spells the End of Popular Sovereignty for The United States
And now Expose the TPP, which makes regulatory structure just a wee bit more precise while, again, agreeing on the secrecy:
The Trans-Pacific Partnership n. 1. A free trade agreement that would set rules on non-trade matters such as food safety, internet freedom, medicine costs, financial regulation, and the environment. 2. A binding international governance system that would require the United States, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and any other country that signs on to conform their domestic policies to its rules. 3. A secret trade negotiation that has included over 600 official corporate trade advisors while hiding the text from Members of Congress, governors, state legislators, the press, civil society, and the public.
Fortunately, and bringing me to the second and more important reason the TPP undermines popular sovereignty, the investment chapter for the TPP was leaked, and the excellent Public Citizen[2] published it (link to the PDF). Their summary in relevant part describes the investor-state dispute settlement (ISDS) provisions:
These provisions are so extreme that many people unfamiliar with them tend to dismiss description of them or their implications -
“Procedural rights that are not available to domestic investors to sue governments outside of national court systems, unconstrained by the rights and obligations of countries constitutions, laws and domestic court procedures (Section B). There is simply no reason for foreign investors to pursue claims against a nation outside of that nations judicial system, unless it is in an attempt to obtain greater rights than those provided under national law. Moreover, many of the TPP partners have strong domestic legal systems . For example, TPP partners New Zealand, Australia and Singapore are all ranked by the World Bank as performing at least as well as the United States with regard to control of corruption and adherence to rule of law. Yet in a manner that would enrage right and left alike, the private investor-state enforcement system included in the leaked TPP text would empower foreign investors and corporations to skirt domestic courts and laws and sue governments in foreign tribunals. There, they can demand cash compensation from domestic treasuries over domestic policies that they claim undermine their new investor rights and expected future profits. This establishes an alarming two-track system of justice that privileges foreign corporations in myriad ways relative to governments or domestic businesses. It also exposes signatory countries to vast liabilities, as foreign firms use foreign tribunals to raid public treasuries.
Edit.
Reddit discussion thread on the same topic receives 3500 comments. Please follow it here. Top comment explains it all (check the para in bold):
I’m an attorney with a practice in copyright, entertainment, video games, and internet law. I read through the whole text of the leak and tweeted my thoughts as I went through: https://twitter.com/ultradavid. Note: this isn’t intended to be definitive or complete!
Tl;dr by section:
--Some countries want more protection for geographical indications, which are rights to names based on location (like how sparkling wine is only “champagne” if it’s from Champagne France). The US seems not to really care about this.
--It provides for a big increase in the kinds of things that can be patented in ways that could harm the pace of innovation, consumers, and smaller companies. Newly patentable things would include plants, animals, biological processes, video game rules, methods of mental processes, software itself, artwork, books, and more. The US already allows some of these, but other countries don’t, and nobody allows patents for some of them.
--There’s a way to re-patent already known or previously patented stuff as long as you claim the stuff has a new use. The US also wants standards for granting patents to be relaxed a bit compared to many countries’ current requirements and patent terms to be made effectively longer by not counting long delays between when the patent was first filed and when it was granted (which can take years in some cases) toward the total patent term.
--There are some reasons for a country to not allow a patent to be used (aka exploited), like dire health circumstances, but not, as it says, “merely because the exploitation is prohibited by their law.”
--Penalties for many kinds of copyright infringement and circumvention of technological protections like DRM would be increased. Some of these rules would require countries to install penalties like the US currently has, while others criminalize and penalize more severely than anyone currently does.
--If the US gets its way, internet service providers will be on the hook to some degree for copyright infringement engaged in by their users and will be legally incented to work with copyright owners to deter infringement. Other countries oppose this.
Super tl;dr: It’s a backdoor SOPA/PIPA that includes a major power grab for large patent and copyright industries, may introduce new liability for ISPs, could seriously harm innovation and consumer rights and choice, and impinges on national sovereignty.
Lemme know if you have any questions!
Edit: Yay, thanks for the gold! Also, edited wording and content a bit.
Nakedcapitalism blog has another post discussing the implications of TPP. The entire post is worth reading, but we are adding an image that describes a few major implications.
Also check this discussion -
Another medical-industrial complex rent-extraction technique is by covering surgical methods . No, I am not making that up. See this section of an excellent discussion by Knowledge Ecology International:
“An interesting example of how the US seeks to change national and global norms are the provisions in the TPP over patents on surgical methods. The WTO permits countries to exclude diagnostic, therapeutic and surgical methods for the treatment of humans or animals. The US wants to flip this provision, so that may also exclude from patentability becomes shall make patents available. However, when a version of the IP Chapter was leaked in 2011, the US trade negotiators were criticized for ignoring the provisions in 28 USC 287 that eliminated remedies for infringement involving the medical activity of a medical practitioner. The exception in US law covered the performance of a medical or surgical procedure on a body. The US trade negotiators then proposed adding language that would permit an exception for surgery, but only if they cover a method of using a machine, manufacture, or composition of matter. The US proposal, crafted in consultation with the medical devices lobby, but secret from the general public, was similar, but different from the U.S. statute, which narrowed the exception in cases involving the use of a patented machine, manufacture, or composition of matter in violation of such patent. How different? As Public Citizens Burcu Kilic puts it, under the US proposal in the TPP, the exception would only apply to surgical methods you can perform with your bare hands.”
Im not sure how this would work in practice, but I imagine it would be ugly. For instance, Johnson & Johnson dominates the market for replacement hips and knees. They also provide tools used to perform the surgeries on those hips and knees which surgeons need to buy (as in no one had the incentive beside J&J; to make these implements, and surgeons would be unlikely to scrimp on a secondary cost when it gets billed back to the patient anyhow).
