How the Trans-Pacific Partnership threatens online rights and freedoms

• The Trans-Pacific Partnership or TPP creates an unbalanced regime that creates disadvantages for Asian countries
• The TPP head to Malaysia in July for the 18th round of negotiations in Malaysia; our reps need to be ready

Digital Consumers by Dr Jeremy Malcolm

EVERYTHING that happens on the Internet involves copying: that's the way the Internet works.  Whether it's photos on a web page, a YouTube video, or an online encyclopaedia, in order for you to gain access, temporary copies of the content are automatically made.
 
But under a new regional free trade agreement called the Trans-Pacific Partnership or TPP, copyright owners might have to give permission for each and every one of those temporary copies.
 
This could cast a legal shadow over routine technical processes of Asian service providers such as caching, as well as crippling our burgeoning content industry, whilst leaving US competitors unaffected – due to their ability to make use of the broad ‘fair use’ exception in American copyright law that most other countries in this region lack.
 
The proposed ban on unlicensed temporary copies is painted as an anti-piracy provision, but it’s unnecessary to prevent piracy: If content is unauthorized, then whoever uploaded it, and whoever downloads it, has already committed a copyright violation.
 
Rather, the temporary copying provision will impact intermediaries like search engines, cloud storage providers and user-generated content hosts, and thereby ordinary consumers.
 
This is just one of the disturbing provisions of the intellectual property chapter of the TPP, which itself is only one of 29 chapters of the agreement – but the most contentious of any of them.  Amongst the 11 countries negotiating the TPP are Malaysia, Singapore, Brunei and Vietnam, as well as one particularly aggressive 800-pound gorilla: The United States.
 
Another TPP proposal that will limit access to content online is the extension of the copyright term by another 20 years. Whereas today's content giants like Disney Corporation have benefited financially from their ability to build upon cultural works from the past, they want to deny that same freedom to the new generation of mash-up artists, remixers and fans who could otherwise freely make use of our shared cultural heritage.
 
The TPP's intellectual property chapter would also beef up the enforcement of intellectual property rights, like the controversial and ill-fated Anti-Counterfeiting Trade Agreement (ACTA) before it.
 
(Indeed, it is sad to say that one of the promising developments from recent rounds of the TPP have been rumors that the United States may be willing to “settle” for the same level of intellectual property enforcement that ACTA provides, rather than maintaining its demand for even stricter standards.)
 
For example, it has already been mentioned above that artists and fans will be denied access to the free use of cultural works from the 20th century – to give a Malaysian example, the films of P. Ramlee that are currently (but may not be for much longer) winding up their terms of copyright protection.
 
If a P. Ramlee fan were to maintain a downloadable archive of clips from his songs and films anyway, even if it was conducted on a purely not for profit basis, the TPP would render our fan liable not only to civil damages, but criminal liability. He could end up with a criminal record simply for attempting to preserve Malaysian cultural heritage.
 
In addition, the TPP would prohibit the use of tools to allow access to copyright works protected by digital locks. This means that even for a P. Ramlee film that is in the public domain and therefore free to legally copy, it would be a separate offence to rip a DVD of the film, since DVDs are protected by a trivial form of digital lock.
 
Even more surreal, it could be an offence to even play such a film on a region-free DVD player, as region-free players can be characterized as devices for the circumvention of DVD region codes. It does not even cross the mind of any right-thinking consumer that doing this would breach any copyright law, and yet under the TPP, it would – along with other innocent activities such as unlocking a legally-purchased mobile phone handset.
 
Compounding this, the TPP would restrict parallel importation, which is the right for local businesses to import cheaper legal copies of goods from overseas, rather than being held to ransom by local monopoly suppliers.
 
The TPP in other words deliberately reduces cross-border competition (ironically, this in a free trade agreement), to justify companies charging higher prices for the same product wherever they think they can get away with it.
 
This would mean, to give just one example, an end to the supply of parallel imported CDs, which currently occurs legally in TPP negotiating countries like Australia, New Zealand and Singapore, and which they rely upon to counteract the blatant price discrimination to which they are otherwise subject.
 
The TPP also requires Web companies that host user-generated content to take that content down in response to copyright claims, even before the uploader has had a chance to respond – which creates an improper incentive for copyright claimants to lodge bogus complaints.
 
This provision has been cut and pasted from the American Digital Millennium Copyright Act or DMCA, which has been roundly criticized for facilitating the take-down of legitimate content such as home movies and parodies.
 
In conjunction with this, the TPP promotes technical standards for systems to identify copyright material in user-generated content, despite the proved risk of such systems reporting false positives – such as identifying birdsong as a copyright work.
 
Similarly, the TPP encourages legal incentives for ISPs (Internet service providers) and copyright owners to reach under-the-table deals to combat piracy, deals in which consumers will have no say.  These may include measures such as the French HADOPI or ‘three-strikes’ law, under which those accused of copyright infringement by industry investigators could suffer disconnection from the Internet, or throttling of their connection speed.
 
Although the HADOPI regime is considered an expensive failure, similar six strikes measures have just been adopted in the United States, requiring ISPs to engage in systematic privacy violations of their users in order to act as copyright police for rights-holders.
 
The worst thing is that we don't have a say in any of this, as the negotiations are closed to the public. Over the two-week Singapore round of negotiations that ended earlier this week, stakeholders were barred from the negotiation rooms, and denied access to the text under discussion (we only know what we do due to a series of leaks).
 
In contrast, the US Government office that is driving the negotiations has a panel of 750 advisers, most from big corporations, who have not only seen the text, but have helped to write large parts of it.
 
The TPP will head to Malaysia for its 18th round of negotiations in July, aiming towards a final agreement in October. None of the other countries are keen to agree to the demanding copyright changes that America has been demanding, since they are all net importers of intellectual property such as movies, music and software from the United States.
 
Yet politically, other countries may not have much of a choice but to agree, if they wish to appease the demands of local farmers and manufacturers who want the United States to grant them improved market access terms for their products.
 
Maintaining a healthy digital ecosystem, built upon a robust, culturally diverse public domain and reinforced with strong user rights that promote collaboration and innovation, should be an important priority for Asia.
 
In the long run, it may prove even more important to our shared future than the marginally improved terms on which the United States might accept our rice, textiles or manufactured goods if we kowtow to its demands on IP.
 
Our representatives need to be told this in very clear terms, and they have only a precious few more months in which to listen.
 
Dr Jeremy Malcolm is an Internet and Open Source lawyer, consumer advocate and geek. He is also a senior policy officer at Consumers International and can be found on Twitter and LinkedIn.
 
Previous Installments of Digital Consumers:
 
Internet freedom in a world of states
 
Copyright enforcement is killing people

WCIT: Freemasons, Internet memes and salt

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