An Analysis of the TPP’s Infamous Intellectual Property Draft Chapter

An Analysis of the TPP’s Infamous Intellectual Property Draft Chapter

When the investment chapter draft leaked, it sparked outrage amongst the people in New Zealand and pushed the New Zealand government into damage control. Now that Canada is involved in the TPP negotiations, you’d think that the Canadian media would have figured out all the ins and outs of the TPP now that such content is just a click away. It turns out, the TPP might be a little out of most of the Canadian medias depth as they puzzlingly focus on supply management and little else. With that in mind, we found it necessary to do an analysis ourselves of the proposed intellectual property chapter.

We’ve been following the TPP (Trans-Pacific Partnership) in depth for some time now. While for some, it may seem like I was covering something of little concern, now that more and more countries are joining, suddenly, what we reported on has become hugely important. I knew this would very likely have huge potential to become a hugely important topic in the future. So, now that Canada is getting involved, the Canadian media has finally decided to start covering this. Unfortunately, the media has largely been proving that the TPP is a little out of their depth. In all fairness, when it comes to figuring out things, the TPP is a bit of a tough nut to crack. Between the secrecy, the complexity and the complicated text when something does leak, it’s quite easy to get lost in the labyrinth of facts, topics and confusion. To put this into perspective, I’m convinced that we here at ZeroPaid are barely scratching the surface of what is in the TPP with only having only seen two chapters in negotiations. I’ve heard there was more than 20 chapters involved, but I don’t know how many chapters there are in there for sure. So, we know less than 10% of what is in these negotiations.

That doesn’t make figuring out the TPP a hopeless cause though. So, even though the content we are about to cover is more than a year old, we felt it was necessary to manually go back over it ourselves even though covered this before in the past. We will simply go over this chapter as if no one else has done it before so as to obtain independent verification of the concerns in question.

So, where can you find the proposed Intellectual Property chapter? That can be found on KEIOnline. It’s what the US has proposed for the Intellectual Property chapter of the TPP. It’s a 38 page PDF file. Naturally, we can assume that the US has a lot of sway in negotiations like this which makes the US proposal that much more important.

The Analysis

Declassification Date

The document starts with this nugget:

Declassify on: Four years from entry into force of the TPP agreement
or, if no agreement enters into force, four years from the close of the negotiations.

While it isn’t clear whether this is referring to just the draft or the final version of the chapter, it still strikes me as odd why one would have to wait so long for something like this to become public.

Ratification of Other Treaties

Right after that last nugget, there’s this gem:

Each Party shall ratify or accede to the following agreements by the date of entry into force of this Agreement:
(a) Patent Cooperation Treaty (1970), as amended in 1979;
(b) Paris Convention for the Protection of Industrial Property (1967);
(c) Berne Convention for the Protection of Literary and Artistic Works (1971);
(d) Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
(e) Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);
(f) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
(g) International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention);
(h) Singapore Treaty on the Law of Trademarks (2006);
(i) WIPO Copyright Treaty (1996); and
(j) WIPO Performances and Phonograms Treaty (1996).

What is of interest here is that by agreeing to the TPP, your country would have to ratify things like the WIPO treaties. A lot of people have been known to be against WIPO. WIPO, at one point, made headlines for trying to institute what was known as a broadcast flag which would legally prevent people from recording certain television shows on their PVR for instance (not the case anymore).

At this point, we move ahead to about a dozen pages in because what is discussed is trademarks. You can get a general sense of what was discussed just by looking at the list of agreements that are being pushed above.

Top Level Domain Management

The chapter on page 12 specifically mentions domain names:

1. In order to address the problem of trademark cyber-piracy, each Party shall require that the management of its country-code top-level domain (ccTLD) provide an appropriate procedure for the settlement of disputes, based on the principles established in the Uniform Domain-Name Dispute-Resolution Policy.

2. Each Party shall require that the management of its ccTLD provide online public access
to a reliable and accurate database of contact information concerning domain-name registrants.

In Canada, it’s possible to purchase domain names and conceal your personal information. The TPP would completely undue this and force everyone to reveal their personal information.

Copyright Provisions – Beginning

The article begins with the following:

1. Each Party shall provide that authors, performers, and producers of phonograms8 have the right9 to authorize or prohibit all reproductions of their works, performances, and phonograms,10 in any manner or form, permanent or temporary (including temporary storage in electronic form).

With respect to citation 8, “References to “authors, performers, and producers of phonograms” refer also to any successors in interest.”

When I read this, I wonder if any fair use, fair dealing or any other exceptions are allowed here or if fair dealing/fair use is struck altogether. I’m thinking that existing laws in each country still provide those exceptions.

Copyright Provisions – Term Length

The length of copyright is described as the following:

5. Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:

(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author’s death; and

(b) on a basis other than the life of a natural person, the term shall be:

(i) not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or

(ii) failing such authorized publication within 25 years from the creation of the work, performance, or phonogram, not less than 120 years from the end of the calendar year of the creation of the work, performance, or phonogram.

For a number of countries, this represents an increase in the duration of copyright. Canada, for instance, has life plus 50 years. If you’re wondering about other countries, you can check out this Wikipedia entry for a list of countries and their respective terms for copyright. One thing we noticed was numerous countries holding life plus 50 years, so numerous countries would have their term lengths increased under the TPP.

Copyright Provisions – Anti-Circumvention

Anti-circumvention provisions are also included in the TPP:

9. (a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:

(i) circumvents without authority any effective technological measure that controls access to a protected work, performance, phonogram, or other subject matter; or

(ii) manufactures, imports, distributes, offers to the public, provides, or otherwise traffics in devices, products, or components, or offers to the public or provides services, that:

(A) are promoted, advertised, or marketed by that person, or by another person acting in concert with that person and with that person’s knowledge, for the purpose of circumvention of any effective technological measure,

(B) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure, or

(C) are primarily designed, produced, or performed for the purpose of enabling or facilitating the circumvention of any effective technological measure, shall be liable and subject to the remedies set out in Article [12.12]. Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, archive, educational institution, or public noncommercial broadcasting entity, is found to have engaged willfully and for purposes of commercial advantage or private financial gain in any of the foregoing activities. Such criminal procedures and penalties shall include the application to such activities of the remedies and authorities listed in subparagraphs (a), (b), and (f) of Article [15.5] as applicable to infringements, mutatis mutandis. 12

(b) In implementing subparagraph (a), no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing subparagraph (a).

(c) Each Party shall provide that a violation of a measure implementing this paragraph is a separate cause of action, independent of any infringement that might occur under the Party’s law on copyright and related rights.

(d) Each Party shall confine exceptions and limitations to measures implementing subparagraph (a) to the following activities, which shall be applied to relevant measures in accordance with subparagraph (e):

(i) noninfringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities, for the sole purpose of achieving interoperability of an independently created
computer program with other programs;

(ii) noninfringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, unfixed performance, or display of a work, performance, or phonogram and who has made a good faith effort to obtain authorization for such activities, to the extent necessary for the sole purpose of research consisting of identifying and analyzing flaws and vulnerabilities of technologies for scrambling and descrambling of information;

(iii) the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate online content in a technology, product, service, or device that itself is not prohibited under the measures implementing subparagraph (a)(ii);

(iv) noninfringing good faith activities that are authorized by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network;

(v) noninfringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work;

(vi) lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes;

(vii) access by a nonprofit library, archive, or educational institution to a work, performance, or phonogram not otherwise available to it, for the sole purpose of making acquisition decisions; and

(viii) noninfringing uses of a work, performance, or phonogram in a particular class of works, performances, or phonograms when an actual or likely adverse impact on those noninfringing uses is demonstrated in a legislative or administrative proceeding by substantial evidence; provided that any limitation or exception adopted in reliance upon this clause shall have effect for a renewable period of not more than three years from the date of conclusion of such proceeding.

So, in other words, unless you are the government, a security researcher, a library, an archive or an educational institute, if you so much as circumvent any DRM, advertise something that circumvents a DRM, or even talk about DRM circuvmention, you will be criminally liable and thrown in jail. It doesn’t matter if actual copyright infringement took place or not, you’re going to prison and you’re going to have a criminal record. Fair use? Fair dealing? Never heard of it. Have a disability? That’s no excuse.

Penalty for Infringement Can be Raised by 3 Times

This was an interesting part (found on page 25):

4. In civil judicial proceedings, each Party shall, at least with respect to works, phonograms, and performances protected by copyright or related rights, and in cases of trademark counterfeiting, establish or maintain a system that provides for pre-established damages, which shall be available upon the election of the right holder. Pre-established damages shall be in an amount sufficiently high to constitute a deterrent to future infringements and to compensate fully the right holder for the harm caused by the infringement. In civil judicial proceedings concerning patent infringement, each Party shall provide that its judicial authorities shall have the authority to increase damages to an amount that is up to three times the amount of the injury found or assessed

Not only are rights holders allowed to penalize infringers for the assessed value of the work in question, but can also multiply the damages by three times because… well, just because. Does the part that says “constitute a deterrent” also apply to the three times or is it unlimited damages?

Losing Party Pays Attorney Fees

5. Each Party shall provide that its judicial authorities, except in exceptional circumstances, have the authority to order, at the conclusion of civil judicial proceedings concerning copyright or related rights infringement, trademark infringement, or patent infringement, that the prevailing party shall be awarded payment by the losing party of court costs or fees and, at least in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting, reasonable attorney’s fees. Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party shall be awarded payment by the losing party of reasonable attorneys’ fees.

So, if you are taken to court for infringement and you lose the case, you are then obligated to pay for the lawyers of the winning party. Go figure.

Losing Party Pays for Expert Witnesses

Not only are people obliged to pay attorney fees, but they are also obliged to pay for experts fees as well:

11. In the event that a Party’s judicial or other authorities appoint technical or other experts in civil proceedings concerning the enforcement of intellectual property rights and require that the parties to the litigation bear the costs of such experts, that Party should seek to ensure that such costs are closely related, inter alia, to the quantity and nature of work to be performed and do not unreasonably deter recourse to such proceedings.

If I’m reading this right, any cost associated by the investigation as it relates to people with technical expertise can also be extracted by the losing party as well.

Online Enforcement – The Three Strikes Law

As was generally known, the three strikes law is in here:

ARTICLE 16: SPECIAL MEASURES RELATING TO ENFORCEMENT IN THE DIGITAL ENVIRONMENT

1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Chapter, are available under its law so as to permit effective action against an act of trademark, copyright or related rights infringement which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.

[…]

3. For the purpose of providing enforcement procedures that permit effective action against
any act of copyright infringement covered by this Chapter, including expeditious remedies to prevent infringements and criminal and civil remedies that constitute a deterrent to further infringements, each Party shall provide, consistent with the framework set out in this Article:

(a) legal incentives for service providers to cooperate with copyright29 owners in deterring the unauthorized storage and transmission of copyrighted materials; and

(b) limitations in its law regarding the scope of remedies available against service providers for copyright infringements that they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf, as set forth in this subparagraph (b).

[…]

(vi) Eligibility for the limitations in this subparagraph shall be conditioned on the service provider:

(A) adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers;

Just about everyone knew the three strikes law was in here. If you wanted a source that pointed to the exact part and quoted it, well, we’ve got you covered here. The last part in the quotation is found on page 34 of the PDF file.

Online Enforcement – SOPA-Style Internet Censorship

In the same section (same page even), just a little bit down, you’ll find this:

(viii) If the service provider qualifies for the limitations with respect to the function referred to in clause (i)(A), court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location. If the service provider qualifies for the limitations with respect to any other function in clause (i), court-ordered relief to compel or restrain certain actions shall be limited to removing or disabling access to the infringing material, terminating specified accounts, and other remedies that a court may find necessary, provided that such other remedies are the least burdensome to the service provider among comparably effective forms of relief. Each Party shall provide that any such relief shall be issued with due regard for the relative burden to the service provider and harm to the copyright owner, the technical feasibility and effectiveness of the remedy and whether less burdensome, comparably effective enforcement methods are available. Except for orders ensuring the preservation of evidence, or other orders having no material adverse effect on the operation of the service provider’s communications network, each Party shall provide that such relief shall be available only where the service provider has received notice of the court order proceedings referred to in this subparagraph and an opportunity to appear before the
judicial authority.

It’s pretty cut and dry at the first portion of this paragraph. It’s all about Internet censorship here.

Our Conclusions

It’s about as bad as others fear it would be. If the Us has its way, the TPP will have SOPA-Style censorship, a three strikes law, a notice-and-takedown system, extension of copyright term lengths and extreme anti-circumvention laws. We are aware of others bringing up other scary stuff as well. For all we know, those observations are also accurate. We can say there is probably more contained in this chapter that we missed. All in all, when the media suggests that it’s simply about supply management, they are missing everything that is contained in this article and a whole lot more. I think Canadians would do well in knowing what has been brought to light so they have the most complete knowledge of what’s going on as possible.

Also, feel free to read this chapter yourself and come to your own conclusions. After all, it’s leaked information and you weren’t meant to know all of this.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at [email protected].