The Controversy of the Trans-Pacific Partnership (TPP)

One of the major issues surrounding, among other things, Internet freedom revolves around a secretive agreement known as the Trans-Pacific Partnership (TPP). Since there is interest to speed up the negotiating process, it doesn’t hurt to go back and look at a few reasons why the agreement is so controversial in the first place.

Drafted in 2005, supporters of the Trans-Pacific Partnership (TPP) say that the agreement would break down trade barriers and help the struggling world economy. Opposition to the agreement have argued that the devil is in the details.

Because of its secretive nature, the TPP didn’t gain any significant controversy at first. A few years into the negotiating process, draft copies leaked online. Alarm bells for the agreement were rung by civil rights groups and human and Internet rights advocates ever since. A well known copy of the leaked document made the rounds online and ultimately landed on the KEIOnline website. The draft document from February 10, 2011 has been one of the key documents for human rights advocates for pointing out what is, as they say, wrong with the agreement.

One provision is found in Article 3 and it states the following:

Top Level Domain Privacy

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.

This may seem pretty innocuous at first, but some countries allow for such information to be more anonymous. The reason is partly due to privacy. Some people feel that certain kinds of personal information shouldn’t be made public in the first place. In some cases, there are those that want to hide, say, a direct e-mail account because some e-mail spammers actively go through WHOIS databases for active e-mail accounts. WHOIS databases contain information about who registered what domain, what nameservers are used and can contain other pieces of information as well. This provision, if still intact in the current iteration of the agreement, would undo some of the protections some of the countries have put in place for some users of the Internet.

Copyright Term Extensions

Another controversial provision contained within the draft document has to do with the length of copyright terms. This is found in Article 4:

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,

There are a number of countries where the length of copyright is life plus 50 years. For a number of critics of the agreement, even life plus 50 years is excessive. In fact, the longest known copyright term is found in Mexico where the length is life plus 95 years. The effect of lengthening the term of copyright is that works will not enter the public domain for however long the term is extended. Many works in the public domain are used to help new content creators come up with new ideas for new works. If such content is not allowed to enter the Public Domain, then those creators can’t build off of such works without fear of litigation.

Anti-Circumvention Provisions

An even more controversial provision has to do with anti-circumvention. This is also contained within Article 4:

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.

Critics point out that the problem with anti-circumvention measures is that it assumes that every time someone breaks a copy protection measure (sometimes named Digital Rights Management (DRM) or maybe Technical Protection Measure (TPM)) the law would assume that you are infringing on copyright. However, many countries afford users a few rights (often referred to as exceptions to copyright law). In the United States, this is referred to as “Fair Use”. In Canada, this is referred to as “Fair Dealing”. So, if, for example, someone takes a CD, puts it into their computer, copies a song off of it, takes a few seconds off of it and incorporates it into an educational presentation, that activity is allowed in some countries because there are exceptions to the copyright law. If there is a piece of copy control technology on that CD and that country has said that all activities surrounding circumventing that copy protection to get that sample in the first place is an infringement of copyright, then that means you are breaking copyright laws anyway even if that activity would have been otherwise legal.

Another point that could be made about this provision is that introduces criminal liability element into the picture. That can mean prison time or fines higher than what might have been awarded if this remained a civil matter. In addition to this, a criminal matter can mean that the lawyers acting the part of the prosecution are being paid by the taxpayer rather than, say, the record labels or movie studios. While some might have a problem with this, lets look at an example that might put this into perspective.

Lets say your laptop runs has Linux installed on it as either the main operating system or duel-booted with another operating system. You decided to go on a nice vacation to Hawaii from Australia and you decided last minute to take the laptop with you because you want to get some work done in Libre Office for work before you get back. You arrive at the airport and you happen to get a security official that is really enthusiastic about protecting copyright. Naturally, that person finds the laptop and happens to find a program that allowed you to view a DVD. That program has to break the copy protection just to view that DVD in the first place. Now, you are guilty of attempting to import a device that is capable of breaking a DRM. Do you think you should be liable for copyright infringement and fines associated with that? A number of people might say no, but people’s opinions don’t immediately matter when such laws are written in stone. One thing that should be noted is that judges do have discretion on the cases they see before them, but that discretion is limited to whatever the law says. Bear in mind that Article 12, section 12 does explicitly state that rights holders can at least seek damages. This scenario does appear to fit within such provisions.

Internet Service Provider Liability

The controversy mounts as we read through the draft law with what is contained in the service provider liability provisions. In Article 16, we see the following:

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

On first glance, this does seem quite harmless. However, it is known, at least from the Internet Service Providers perspective, that legal incentives can include the removal of safe harbor provisions. This is, of course, particularly relevant to providers in the United States.

Safe harbor provisions, generally speaking, allows a provider to operate without fear of copyright liability. So, if the provider did not advertise their services as a service for the infringement of copyright (as particularly seen in the MGM vs. Grokster case) and a user on their services did infringe on copyright, the provider is not liable for the actions of the user. Instead, liability can easily rest on the user instead. The law may be more nuanced then that, but for the purposes of this article, that’s a decent general idea of how such provisions in the law works.

So, how can the provisions in the TPP impact this? If rights holders believe that a website is used for infringement, then they could ask the government to say that ISPs should either block access to that website or say that the ISP is liable for the infringement of their users. That would be a legal incentive as mentioned in this provision of the TPP.

Proponents may argue that for some websites, it is very plainly obvious that a website is used for infringement. However, as many know from working in a bureaucratic environment for a certain period of time, when someone with authority gets a hammer, just about anything can look like a nail. Indeed, just with the Digital Millennium Copyright Act, there have been no shortage of false accusations of copyright infringement in the past. So requests to block perfectly legal websites is not really unforeseeable if a rights holder can block a website on request. Furthermore, there is the ramifications of instituting a system of guilt upon accusation. Why can’t there be a trial where all evidence is examined before a website is blocked? Isn’t it a reasonable expectation in a democratic society to have all evidence examined before any sanctions be levied against a defendant? In addition to that, what about websites that exist offshore? Would they ever get their day in court most of the time? For a lot of advocates of free speech, this kind of idea is a very slippery slope.

In fact, if one reads further down in the same section, one will find that censorship is explicitly mentioned:

(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.

Account Termination of Users

One of the most controversial ideas outside of Internet censorship is the idea of account termination. This has often been characterized as a “three strikes law” as made famous by the French HADOPI law which instituted this without much success to this date. The idea is simple: if a user is accused of copyright infringement three times, then they will have their account with the ISP terminated. The United States has been floating the idea of a 6 strike rule that doesn’t necessarily end in termination all the time, but it can lead to things like forcing users to use “educational” materials and even throttling. Whatever the variant of such a law or policy, the idea is very similar in that a rights holder can punish people without having to go to court. This idea was not only explicitly mentioned in the previous snippet, but also here as well (Article 16):

(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

Advocates warn that such a concept has serious flaws. For instance, in most cases, the evidence used against an alleged infringer hinges on an IP address. While the IP address may lead to the owner of the account in question, it is not at all reliable in identifying the person behind the infringement.

One scenario that makes such information unreliable is if someone managed to break into someone else’s WiFi hotspot. The IP address will only lead to the unwitting owner. The obvious answer may be to encourage people to heavily encrypt their WiFi network, but not every Internet account holder is an expert on the subject and may not even know how to encrypt their WiFi network in the first place.

The Problem of Secrecy

The overall idea is that this agreement is supposed to be about trade. Unfortunately, the evidence shows that this agreement has less to do with trade and more to do with changing laws including the criminal code. Activists have been trying to get official word on the specific details of this agreement without having to rely on leaked material, but are typically blocked based on the idea that this is a trade secret and cannot be discussed until the agreement is finalized. Unfortunately, once the agreement is finalized, it cannot be changed and, therefore, it’ll be too late to insert consumer friendly provisions. This, unsurprisingly leads to accusations that the agreement is incredibly one-sided and doesn’t take into account all stakeholders involved.

While this agreement has yet to be finalized, it will certainly be one worthy of following closely because, unlike the Anti-Counterfeiting Trade Agreement (ACTA), this agreement has a lot of other non-technology related provisions wrapped up in it – thus making it harder to stop for those who have serious problems with it.

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