The Battle Over the Trans-Pacific Partnership Agreement Continues

While the threat of SOPA (Stop Online Piracy Act) potentially causing absolute chaos on internet and innovation may have been postponed for now, that doesn’t necessarily mean that the fight to save the internet is over. While the SOPA debate is currently more or less dormant, the battle over the Trans-Pacific Partnership (TPP) is still ongoing.

For those who may have forgotten about what is being discussed in the TPP, we can get a decent summary of the more controversial portions of the agreement from Wikipedia which, in part, reads:

1. Include a number of features that would lock-in as a global norm many controversial features of U.S. law, such as endless copyright terms.

2. Create new global norms that are contrary to U.S. legal traditions, such as those proposed to damages for infringement, the enforcement of patents against surgeons and other medical professional, rules concerning patents on biologic medicines etc.

3. Undermine many proposed reforms of the patent and copyright system, such as, for example, proposed legislation to increase access to orphaned copyrighted works by limiting damages for infringement, or statutory exclusions of “non-industrial” patents such as those issued for business methods.

4. Would eliminate any possibility of parallel trade in copyrighted books, journals, sheet music, sound recordings, computer programs, and audio and visual works.

5. Requires criminal enforcement for technological measures beyond WIPO Internet Treaties, even when there is not copyright infringement, impose a legal regime of ISP liability beyond the DMCA standards.

6. Requires legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials.

7. Requires identifying internet users for any ISP, going beyond U.S. case law, includes the text of the controversial US/KOREA side letter on shutting down web sites.

8. Requires adopting compensation for infringement without actual damages.

9. For copyright and trademark, criminal punishment would apply even to non-for-profit infringement.

It’s not hard to see this as the next SOPA. One wonders if just talking about copyright in a manner that is not approved by, for example, major record labels would subject people to criminal prosecution like what I’m doing here. Of course, this isn’t a complete list of items contained within the TPP. On another site created by Public Knowledge, there’s more possible provisions in the agreement:

The TPP would encourage your ISP and the content industry to agree to institute measures such as three strikes—which kicks you off your internet connection after three accusations of copyright infringement—and deep-packet-inspection—which is akin to the USPS opening your mail. While we can not be sure exactly what is in the TPP, these examples are derived from a copy of the TPP’s IP chapter that leaked in February last year, the provisions that were reported to be part of earlier drafts of ACTA, and previous free trade agreements that the US has signed.

It’s no wonder some have referred to this as the agreement that contains everything the record labels failed to get in ACTA. Many have launched various campaigns to stop this agreement. For example, back in February, the Electronic Frontier Foundation (EFF) launched a campaign to tell US lawmakers that a backroom deal to regulate the internet was not acceptable.

More recently, the EFF sent out a letter to their supporters:

This week in Dallas, trade representatives are secretly negotiating new regulations for the Internet – including intellectual property provisions that could choke off online speech. The Trans-Pacific Partnership (TPP) Agreement may be even worse than ACTA; it could tie the hands of democratically-elected legislators and create new, international standards for intellectual property enforcement. Worst of all, Internet users and free expression advocates like EFF aren’t allowed in the room and are forbidden from seeing the negotiated text.

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U.S. Trade Representative Ron Kirk claims they have made “extraordinary efforts” to include public stakeholders in negotiations, but this couldn’t be further from the truth. Like ACTA, negotiations have actively excluded civil society and the public, while welcoming private industry representatives with open arms.

EFF’s International IP Director Gwen Hinze traveled to Dallas to demand transparency, but she wasn’t allowed to see the draft text or be present for the negotiations. Here’s how Gwen described the tactics the USTR is using to shut Internet users out from the negotiations:

Unlike previous negotiation rounds, there will be no official forum for stakeholders to present their views to the assembled TPP country negotiators. Instead, stakeholders are being asked to register their interest in sponsoring a table to provide negotiators who might so happen to stroll past with information on particular topics.

The public should be front and center in these negotiations, not relegated to a table outside.

During a recent conference discussing the TPP, the Yes Men also found a way to protest this in their own way. They managed to walk up to a podium and gave Ron Kirk, U.S. Trade Representative and former mayor of Dallas and the TPP negotiators an award for being the “2012 Corporate Power Tool Award”. A video of what happened was posted:

By the end, it became clear that the negotiators weren’t entirely happy with the idea of being considered tools for corporations. You can read more on what the Yes Men had to say on their press release page.

Recently, there have also been reports that the TPP is nearing completion with the goal of wrapping up by the end of the year. Most of what people know about what’s in the text are derived from leaked copies of the agreement. Copies of the text can be found on the Public Intelligence website.

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