An Analysis of the Recently Released Text of the TPP Drew Wilson | February 23, 2018 For those following the roller coaster of a debate surrounding the TPP, the text has recently been released. We take a look at what was made public. If you’ve been following the debate surrounding the Trans-Pacific Partnership (TPP) for at least as long as we have, you’ll know that the infamous “trade” agreement has undergone a lot of changes over the years. In fact, the state of the TPP today is almost completely unrecognizable compared to what it looked like back in, say, 2012. How We Got Here Back then, the TPP was seen as this unstoppable monolith looming over personal and Internet freedoms. People like Cory Doctorow famously called this agreement a “suicide pact“. The agreement as it stood back then is said to suck the money clean out of various countries GDP. With little to no economic benefits, corporations would then be free to follow any law or regulation they please so long as they are headquartered in the country of their choosing. Additionally, corporate profits reign supreme over any law and if a government chooses to demand better, that is grounds for litigation. While there appeared to be no reason to sign on to such a lopsided agreement, the governments were seemingly tripping over each other to sign on. This, of course, doesn’t even get into the intellectual property provisions which was little more than a laundry list of failed proposals pushed by multi-national record labels and movie studios. Everything seemed to be at the expense of the consumer. All this piled on top of the fact the whole agreement remained a secret. Even lawmakers couldn’t get a chance to read the agreement. One lawmaker in the US went so far as to call such high level secrecy “insulting“. Eventually, with the Obama administration’s support of the agreement, it seemed that it wasn’t a matter of if the shoe will drop, but when. Covering the TPP throughout the years felt more like reporting on the impending doom of not just digital rights, but sovereignty and human rights as well. The Surprising Turnaround With such a seemingly assured conclusion to the story, few would have predicted the massive disruption to the entire chain of events. First, the unpredictable rise of Donald Trump that not only propelled him to the top of the Republican party, but also into the White House as well. Amidst the volatile behaviour and seemingly backwards view of the world at large, one of the few things he actually did to support the people is to pull the US out of the TPP. That stunning move left negotiators scrambling to figure out how to keep the TPP alive because the TPP stipulates that a certain percentage of the world GDP must participate in the TPP in order for it to become law. With the US gone, the TPP, as it stood at that point, was effectively dead. Naturally, with so much invested into the agreement, it was only a matter of time before someone opted to make an attempt to resurrect the agreement from the grave. This wound up being New Zealand who first ratified the agreement, then began convincing other countries to come back to the negotiating table. Amidst the re-negotiation of the deal, it seems that with the US out of the picture, the other countries agreed to reportedly nix a lot of the most controversial provisions. While the list provided is, in fact interesting, we find ourselves in a position of reserved optimism because the list of improvements didn’t come with the text of the new deal. The New TPP Text Released It seems that the text of the agreement is now released. So, we are all too happy to pour over the documents to see what is and isn’t there. So, we are looking over the intellectual property chapter which is a source of our main contentions with the agreement. As is the tradition around here, we are providing our own independent analysis of the chapter in question and flagging areas of interest. Ratification of Other Treaties The first interesting note is found towards the beginning of the chapter which reads as follows: 2. Each Party shall ratify or accede to each of the following agreements, if it is not already a party to that agreement, by the date of entry into force of this Agreement for that Party: (a) Madrid Protocol; (b) Budapest Treaty; (c) Singapore Treaty; (d) UPOV 1991; (e) WCT; and (f) WPPT. While the acronyms are vague initially, the agreement noted the following: WCT means the WIPO Copyright Treaty, done at Geneva, December 20, 1996; WPPT means the WIPO Performances and Phonograms Treaty, done at Geneva, December 20, 1996. So, obviously, the concern about forced ratification of those controversial treaties still exists in the most recent text. Length of Copyright The first interesting note we found regarding the length of copyright terms is found here: Article 18.11: Exhaustion of Intellectual Property Rights Nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system. It sounds like a relief, however, the agreement then states further down the following: Article 18.63: Term of Protection for Copyright and Related Rights Each Party shall provide that in cases in which the term of protection of a 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 70 years from the end of the calendar year of the first authorised publication of the work, performance or phonogram; or (ii) failing such authorised publication within 25 years from the creation of the work, performance or phonogram, not less than 70 years from the end of the calendar year of the creation of the work, performance or phonogram So, life plus 70 years is still on the table. This is was longer than the international norms of life plus 50 years. International Pressure In this section, we found that other countries are requested to enforce policies revolving around intellectual property: Article 18.13: Cooperation Activities and Initiatives The Parties shall endeavour to cooperate on the subject matter covered by this Chapter, such as through appropriate coordination, training and exchange of information between the respective intellectual property offices of the Parties, or other institutions, as determined by each Party. Cooperation may cover areas such as: (a) developments in domestic and international intellectual property policy; (b) intellectual property administration and registration systems; (c) education and awareness relating to intellectual property; (d) intellectual property issues relevant to: (i) small and medium-sized enterprises; (ii) science, technology and innovation activities; and (iii) the generation, transfer and dissemination of technology; (e) policies involving the use of intellectual property for research, innovation and economic growth; (f) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO; and (g) technical assistance for developing countries. It’s much harder to judge what this actually means because it can mean a whole lot of different things. Still, we found this section to be relevant nevertheless. The Public Domain It seems the public domain got a nod in this agreement as well: Article 18.15: Public Domain 1. The Parties recognise the importance of a rich and accessible public domain. 2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain. What isn’t clear here is whether or not the material might fall into the public domain in some countries, but not others. What does that mean for enforcement. If the work is considered public domain in one country, does that mean it is being used illegally in another country where the work is still considered protected by copyright law? It doesn’t really say here. Unmasking of Domain Name Holders One of the concerns about privacy is the fact that website domain name owners might face a massive amount of spam should their information appear on public databases. It appears little has changed on this front as far as the agreement is concerned: Article 18.28: Domain Names 1. In connection with each Party’s system for the management of its country-code top-level domain (ccTLD) domain names, the following shall be available: (a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, as approved by the Internet Corporation for Assigned Names and Numbers (ICANN) or that: (i) is designed to resolve disputes expeditiously and at low cost; (ii) is fair and equitable; (iii) is not overly burdensome; and (iv) does not preclude resort to judicial proceedings; and (b) online public access to a reliable and accurate database of contact information concerning domain name registrants, in accordance with each Party’s law and, if applicable, relevant administrator policies regarding protection of privacy and personal data. 2. In connection with each Party’s system for the management of ccTLD domain names, appropriate remedies shall be available at least in cases in which a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trademark. So, the unmasking of domain name owners is still active in the agreement. Copyright Exceptions The exceptions found in the agreement contains the following: Article 18.66: Balance in Copyright and Related Rights Systems Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled. Fortunately, this is generally the norm for a number of countries. So, the good news is that this does at least re-enforce the status quo on this front. Criminal Penalties for Circumventing a DRM With respect to copy protection technology, the agreement states: Article 18.68: Technological Protection Measures (TPMs) 1. 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 unauthorised acts in respect of their works, performances, and phonograms, each Party shall provide that any person that: (a) knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure that controls access to a protected work, performance, or phonogram; or (b) manufactures, imports, distributes, offers for sale or rental to the public, or otherwise provides devices, products, or components, or offers to the public or provides services, that: (i) are promoted, advertised, or otherwise marketed by that person for the purpose of circumventing any effective technological measure; (ii) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure; or (iii) are primarily designed, produced, or performed for the purpose of circumventing any effective technological measure, is liable and subject to the remedies provided for in Article 18.74 (Civil and Administrative Procedures and Remedies). Each Party shall provide for criminal procedures and penalties to be applied if any person is found to have engaged wilfully and for the purposes of commercial advantage or financial gain in any of the above activities. A Party may provide that the criminal procedures and penalties do not apply to a non-profit library, museum, archive, educational institution, or public non-commercial broadcasting entity. A Party may also provide that the remedies provided for in Article 18.74 (Civil and Administrative Procedures and Remedies) do not apply to any of the same entities provided that the above activities are carried out in good faith without knowledge that the conduct is prohibited. 2. In implementing paragraph 1, 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, provided that the product does not otherwise violate a measure implementing paragraph 1. 3. Each Party shall provide that a violation of a measure implementing this Article is independent of any infringement that might occur under the Party’s law on copyright and related rights. 4. With regard to measures implementing paragraph 1: (a) a Party may provide certain limitations and exceptions to the measures implementing paragraph 1(a) or paragraph 1(b) in order to enable non-infringing uses if there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party’s law, giving due consideration to evidence when presented in that process, including with respect to whether appropriate and effective measures have been taken by rights holders to enable the beneficiaries to enjoy the limitations and exceptions to copyright and related rights under that Party’s law; (b) any limitations or exceptions to a measure that implements paragraph 1(b) shall be permitted only to enable the legitimate use of a limitation or exception permissible under this Article by its intended beneficiaries and does not authorise the making available of devices, products, components, or services beyond those intended beneficiaries; and (c) a Party shall not, by providing limitations and exceptions under paragraph 4(a) and paragraph 4(b), undermine the adequacy of that Party’s legal system for the protection of effective technological measures, or the effectiveness of legal remedies against the circumvention of such measures, that authors, performers, or producers of phonograms use in connection with the exercise of their rights, or that restrict unauthorised acts in respect of their works, performances or phonograms, as provided for in this Chapter. 5. Effective technological measure means any effective technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, or phonogram, or protects copyright or related rights related to a work, performance or phonogram. While the first part of this section suggests nothing has changed and that criminal penalties against people who circumvent a DRM is still on the table, paragraph 4 does muddy the waters a bit. In short, there is room for interpretation of what constitutes illegal circumvention and what does not. So, it is left up to individual governments to fuss over the details. That unfortunately doesn’t really offer much in the way of clarification on the subject, but this section does still exist in the agreement. Enforcement and Remedies First up is this section. Like the DRM section above, the section starts off as if nothing has changed, but the last section muddies the waters as there is room for interpretation: Article 18.71: General Obligations 1. Each Party shall ensure that enforcement procedures as specified in this Section are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies that constitute a deterrent to future infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. 2. Each Party confirms that the enforcement procedures set forth in Article 18.74 (Civil and Administrative Procedures and Remedies), Article 18.75 (Provisional Measures) and Article 18.77 (Criminal Procedures and Penalties) shall be available to the same extent with respect to acts of trademark infringement, as well as copyright or related rights infringement, in the digital environment. 3. Each Party shall ensure that its procedures concerning the enforcement of intellectual property rights are fair and equitable. These procedures shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. 4. This Section does not create any obligation: (a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of each Party to enforce its law in general; or (b) with respect to the distribution of resources as between the enforcement of intellectual property rights and the enforcement of law in general. 5. In implementing the provisions of this Section in its intellectual property system, each Party shall take into account the need for proportionality between the seriousness of the infringement of the intellectual property right and the applicable remedies and penalties, as well as the interests of third parties. So, one question does arise from this: what is the measuring stick for seriousness of the infringement. Logic and reason would suggest that something like downloading a copyrighted work is barely serious at all. In fact, a $50 fine is certainly well within the realms of reasonable recourse. Of course, some corporations would interpret that as something worthy of a multi-million dollar fine and prison time. This is thanks to the outdated concept of statutory damages applying to, well, anything and everything. So, again, there are more questions than answers here. Remedies The agreement goes on to discuss what remedies should be available upon conviction: Article 18.74: Civil and Administrative Procedures and Remedies 1. Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered in this Chapter. 2. Each Party shall provide that its judicial authorities have the authority to order injunctive relief that conforms to Article 44 of the TRIPS Agreement, including to prevent goods that involve the infringement of an intellectual property right under the law of the Party providing that relief from entering into the channels of commerce. 3. Each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority at least to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person’s intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity. 4. In determining the amount of damages under paragraph 3, each Party’s judicial authorities shall have the authority to consider, among other things, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price. 5. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer, at least in cases described in paragraph 3, to pay the right holder the infringer’s profits that are attributable to the infringement. The section further stipulates the following: 10. Each Party shall provide that its judicial authorities, if appropriate, have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, patents and trademarks, that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney’s fees, or any other expenses as provided for under the Party’s law. 11. If a Party’s judicial or other authorities appoint a technical or other expert in a civil proceeding concerning the enforcement of an intellectual property right and require that the parties to the proceeding pay the costs of that expert, that Party should seek to ensure that those costs are reasonable and related appropriately, among other things, to the quantity and nature of work to be performed and do not unreasonably deter recourse to such proceedings. This is definitely far removed from the concept of unlimited fines as seen in previous iterations of the agreement. In this case, as far as these paragraphs are concerned, there is no mention of statutory damages, but instead, rely on language on what is reasonable. In addition, all court costs are shoved onto someone who winds up being found guilty. Of note is the provisions surrounding the possibility of tying additional fines to what was made in the way of profits. Some Final Thoughts Compared to the text from a few years ago, the provisions we found are very tame by comparison. From what we saw, there is no more language regarding repeat infringers or references to three strikes law. Some provisions of concern have added language that leaves room for interpretation. In the instance of language surrounding “commercial scale”, that has been better defined and puts that terminology largely at the feet of operations that are operating on a commercial level. The only wiggle room is the concept of causing significant commercial harm to rights holders. That does leave room for interpretation, but it is a stark improvement over simply saying “commercial scale” and leaving that open to any interpretation. This is one of the things that we raised a flag over and it seems largely resolved. That’s not to say concerns remain. There is still provisions that unmask domain name registrants. There is still language that forces countries to adopt terms of life plus 70 years. The lengthening of copyright terms offers no known verifiable benefit to anyone. For as much as this agreement seems to be happy with the concept of the public domain, the extension of copyright terms means that some countries will be robbed of enriching the public domain for an additional 20 years for no good reason. Is That All? While it seems like a complete document, Michael Geist notes that there are side letters being added to the agreement. These letters will not be made public until after the signing of the new version of the TPP: While the release of some of the CPTPP is a welcome development, it should be noted that the new side letters – including those involving Canadian cultural safeguards – were not released and are not expected to be made public until after signing. Given the public frustration with the lack of TPP transparency throughout the negotiations, the failure to provide a comprehensive release ensures continued uncertainty akin to signing a contract without reading the fine print. The Canadian government also released an updated report on the economic impact of the CPTPP. The new report increases the estimated benefits of the deal without the U.S., yet it still excludes the economic impact of many important aspects of the deal, including the IP and digital trade chapters. The digital trade chapter remains problematic as it retains provisions crafted to meet U.S. standards on issues such as privacy and net neutrality. It also limits Canadian policy flexibility on data localization and data transfers. The CPTPP features a new entry into force provision, which is now 60 days after at least six or 50% of the TPP have completed their applicable legal procedures. The agreement itself is expected to be signed in Chile next month. So, as a result, transparency is still a major issue with this agreement. Our interpretation may very well be incomplete in this chapter. As such, the transparency issues have not been fully addressed in spite of the release of the text being a step in the right direction. As such, all we have now is a “what we know so far” about the agreement. What we see appears to be a major improvement over, but more details are still under the wraps of secrecy. Drew Wilson on Twitter: @icecube85 and Google+.