Trans-Pacific Partnership Agreement

16/05/2012 US Congressman Darrell Issa published the Feb 2011 draft of the Trans-Pacific Partnership Agreement(TPPA) as proposed by the US delegation, citing reasons of transparency. There are something very wrong with the negotiation of this agreement when an effort of transparency means releasing a draft that is over one year old.

February 2011 U.S. Draft of the Trans-Pacific Partnership Agreement
Pirate Party Australia took part in the Melbourne round of negotiations community consultation. We didn't have access to the draft for that and could only argue against what had been leaked, it was a strange situation arguing against something that technically you weren't meant to know about. The speech that Deputy President Simon Frew prepared (with the help of other pirates) and was given by the President David Campbell is here:

====Pirate Party Australia's submission to Trans-Pacific Partnership Agreement stakeholders meeting Melbourne 2012==== It is a thorough look at the leaked chapter which is a slightly worse proposal than the version published by Congressman Issa. It has a lot of the background research into what is wrong with the IP chapter of the TPPA. What is below is an initial critique of the February 2011 draft itself. It will be updated as academic and legal experts publish their opinions and as information from the Melbourne presentation gets migrated over.

Generally, this is a proposal weighted completely in favour of a few major US corporations, with civil society largely barred from negotiations after what seemed to be a successful intervention from civil society groups in the Melbourne round. (IE progress in the IP chapter stalled)

Dissection of TPPA Feb 2011 U.S. Draft Agreement
Article 3. Regulation of signatory countries DNS looks nasty, probably for moves like in Holland and Britain, with Pirate Bay blocking etc.

Article 4.1 Grants publishers the right to prohibit transient copying. This could hinder the functioning of sites like Youtube and Vimeo. All streaming video requires the ability to perform transient copying to play on your computer.

Article 4.2 Grants rights holders the right to control their products entry into each countries’ markets. Essentially this bans parallel imports, which is a direct attack on free trade. Without some ability to access goods from other countries, the rights holders can dictate pricing on a country-by-country basis, being able to milk maximum profit from each customer. Allowing parallel imports keeps prices down because retailers and consumers can find the lowest price for a product. The right to find the cheapest price for a good is one of the fundamental tenets of free trade, and the emerging global economy.

Another issue relating to parallel imports regards globalised communications – particularly the use of social media – and the need for people in ‘foreign’ markets to have access to content as soon as possible. One of the biggest motivations for people to share content online is the artificial and unnecessary delay of release times on a country-by-country basis.

It makes sense for media companies to adopt synchronised global release dates, because any social media buzz, which will be global whether you like it or not, will help promote the product globally. Staggered release dates weaken any benefit from social media, and people denied access for living in the ‘wrong’ geographical region will be coerced by social pressures and advertisement displayed on globally available websites to access the material in the only way available to them – through online file-sharing.

Article 4.5.A Term Life + 70 years. Protecting rights holder after death of artist does not benefit creators, nor provide motivation for new works to be produced. Purely a term to benefit major media companies. This extends copyright terms across the TPPA countries. For most countries involved in the negotiations, plans to extend copyright terms will directly harm your economies. These provisions in the Australia–US Free Trade Agreement had a negative impact on the Australian economy and will on all signatory countries except the US.

Article 4.9A Criminalises breaking DRM, although there are some sensible exceptions now that were missing from the leaked version. Using a work for any reason other than as stated in the licence would risk criminal charges, even if the use is considered legal under current arrangements. This directly assaults the rights currently enjoyed by citizens in signatory countries to use media they have purchased how they wish. Rights could be locked up and sold once for each device, requiring consumers to purchase multiple licences to any media they wish to access. If they purchase a new iPod for example, they can no longer access their music collection on their new device and would need to re-licence all of their music.

Article 8.1 Patents can be granted even if there is no known enhancement of a product, just needs to demonstrate ' new forms, uses, or methods' new forms could be interpreted to include Apples 'trade dress' patents on shape etc. of mobile devices.

Article 8.3 has a nice patent exception for outlawing patents that can negatively impact the health of citizens, animals, plants or could harm the environment. This seems to be offset by 8.4 which refuses exceptions when they 'unreasonably prejudice the legitimate interests of the patent owner,'

Article 9.1b If Agricultural Chemical product passes safety + efficacy standards in one country, approval expected in all others to streamline commercialisation of new products. Considering the different safety standards in the signatory countries, this could lead to a significant worsening of safety standards in all signatory countries.

Article 9 there are blank place-holders for the Pharmaceutical sections. This is ominous as some of the pharma provisions around generic medicines were particularly nasty in the leaked version.

Article 10 States that there must be a presumption that the rights holders’ claims to the right is valid, unless evidence to the contrary is produced. In terms of patent law, this presumption is extremely problematic, as many granted patents have no actual basis for the claim. The effects of these policies can be witnessed primarily in the US, where there is a plethora of frivolous lawsuits around patents relating to computer software. Companies known broadly as ‘patent trolls,’ apply for patents on broad, obvious and fundamental ideas, violating the principle that a patent should be granted for only original and innovative developments. Recently a company called Eolas Holdings attempted to claim ownership of a patent for “any program that allowed access to the interactive web”. This means that basically any program that uses the Internet would be required to pay Eolas Holdings a licencing fee to be able to distribute their products.

They lost the case, yet it highlights the danger and cost of dealing with a presumption in favor of the organisation claiming the rights. A claim like this would need to be fought in court because the burden of proof would fall on the defendant to show the patent is invalid.

A similar trend can be found in copyright law. YouTube has an automated take-down system that allows rights holders to remove material that they hold copyright for. In the last week, a company called Rumblefish had a YouTube video taken down for breaching copyright on a ‘sound recording’. The closest thing to a recording in the video was a real bird call, which according to copyright law cannot be copyrighted as it occurs in nature.

This is precisely the sort of thing that will eventuate from the assumption in favour of rights holders, as proposed. Ordinary people who post videos for friends and acquaintances are not in a financial position to challenge such claims. Wrongful claims are a way for old media to directly obliterate the competition. As this is already happening, any claim that the TPPA would not cause such problems is patently ludicrous. This would just export the problem to all signatory countries.

Article 15 i A Sets out criminal liability provisions that include criminal provisions for people engaged in copyright, trademark or patent violations on a “commercial scale”. Commercial scale includes: “significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain;” in other words, people not engaged in any sort of commercial activity at all. This is essentially to criminalise non-commercial file-sharing by stealth. This could lead to people being held criminally liable for copying a CD for a friend. Sharing should never be considered a criminal act.

Article 15.3 criminalises the use of camcorders in cinemas, regardless of intended use of said video, whether for personal or private use. There are already a raft of agreements and laws that cover this issue, and such a proposal would complicate an already confusing aspect of law.

Article 15.4 criminalises “aiding and abetting” intellectual property crimes (sic). There is no definition of what this means, and is so broad that it could mean anything from imposing liability upon intermediaries, such as Facebook and Google, to prosecuting the owners of a compromised wireless Internet hotspot that has been used to download copyrighted content. This poses a serious risk of inadvertently criminalising a significant portion of the population.

Article 16.3 vi A ISP liability, there are more exceptions than the original draft, yet the main exception seems to be that the ISP is 'implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers;' IE 3 strikes style graduated response for file-sharers.

Article 16.3 viii A Orders ISPs to comply with Court ordered site blocking, such as Britain and Holland blocking The Pirate Bay. This is simply censorship to protect commercial interests.

Article 16.3 xii ISPs to hand over customers private data at copyright holders request, such privileged access to peoples private data without Judicial oversight is massive invasion of privacy.