Does the New TPP Deal Solve the Copyright Imbalance?

The Trans-Pacific Partnership (TPP) has made news thanks in part to the copyright policies being pushed. Now, is the deal much more favourable?

The TPP has long been a focal point in the debate around copyright. This is because when the US was part of it, it incorporated some of the worst copyright laws ever conceived of by major multinational corporations. Not only do a lot of policies fall short at solving any problems, but they also introduce many new problems in the process.

Back in 2015, we here at Freezenet posted a critical independent analysis of the various provisions. This cornerstone examination since served as a basis for identifying problematic provisions within the agreement.

Some of the problems we were able to highlight back in 2015 include the ratification of the WIPO treaties, the elimination of domain name privacy, increasing the length of copyright to life plus 70 years, the addition of criminal liability to circumventing copy protection, implementation of “deterrent” level fines for copyright infringement which could actually be an unlimited fine, a mandate to force governments to spy on Internet users for the purpose of tracking infringement, site blocking, traffic shaping, and provisions that would allow authorities to seize your cell phone at the border for the purpose of enforcing copyright laws.

Of course, a lot has changed since these revelations came about with respect to the TPP. In January of 2017, then newly elected president Donald Trump signed an executive order that pulled the US out of the TPP. The move meant that the TPP, as it stood with provisions surrounding GPD, meant that the TPP is dead.

Naturally, with so much on the line for multinational corporations, an effort to resurrect the TPP quickly followed. The resurrection process started when New Zealand suddenly and out of the blue ratified the agreement in May. Just days later, Japan joined the effort to resurrect the “trade” agreement. The effort would effectively be called the “TPP-11” in reference to the 11 countries remaining in the agreement. It didn’t take long for other countries to move back into the fold of negotiations.

Now, Michael Geist is declaring the effort to remove the problematic copyright provisions a victory:

Japan emerged in recent months as the TPP’s biggest proponent and worked hard to bring the remaining countries on board. Canada took the lead on seeking amendments the TPP’s deeply problematic intellectual property chapter, where the original agreement included patent provisions that would likely increase the cost of pharmaceuticals and copyright rules that would lock down content for decades through the extension of the term of copyright beyond the standard established at international law. Indeed, the IP chapter largely reflected U.S. demands and with its exit from the TPP, an overhaul that more closely aligns the agreement to international standards was needed. Canada succeeded on that front with an agreement to suspend most of the controversial IP provisions including those involving copyright term, patent extension, biologics protection, and digital lock rules.

Geist would later later credit the efforts of Canadians speaking out on the issue:

In June 2016, I appeared at one of the government’s public town hall meetings on the TPP. Alongside then-International Trade Minister Chrystia Freeland (now Global Affairs minister), C.D. Howe’s Daniel Schwanen, and Unifor’s Jerry Dias, I had the chance to raise concerns with the TPP’s IP and e-commerce provisions and then hear from dozens of people who raised a wide range of issues. The town hall was part of a broad public consultation that was frequently derided by critics as a stalling tactic, yet the impact of the consultation was felt with yesterday’s announcement of a deal on a slightly re-worked TPP that includes suspension of many of the most controversial IP provisions.

The consultation ran for months, but data released under the Access to Information Act from the period from November 2015 to June 2016 indicate that the government received over 18,000 emails during that period alone, the majority of which were sent through OpenMedia and emphasized concerns with intellectual property, e-commerce, and ISDS. Of the remaining emails, the top two concerns were ISDS and intellectual property.

It does not appear that the inclusion of IP and ISDS rules on the list of suspended TPP provisions is coincidental. Prime Minister Justin Trudeau cited changes to the IP provisions in his Davos speech as one example of how the government worked to make the agreement more progressive, a positive signal for future copyright reforms given the implicit acknowledgement of the problems with copyright term extension and digital locks. Moreover, International Trade Minister François-Philippe Champagne specifically referenced the public feedback yesterday within the context of the IP changes to the TPP, noting the “suspension of many intellectual property provisions of concern to Canadian stakeholders.” The “stakeholders” is the broader public that responded to the consultation and the statement should be viewed as an admission that the results of those efforts had an impact on government policy.

Geist cites an Australian document which lists (PDF) the suspended provisions. The suspended provisions include the following:

2. Investment Agreement and Investment Authorisation (ISDS applies to these)

14. Term of Protection for Copyright and Related Rights – Article 18.63
15. Technological Protection Measures (TPMs) – Article 18.68
16. Rights Management Information (RMI) – Article 18.69

While not every issue is resolved with the removal of these provisions, it is certainly a significant improvement over what was in the agreement before the US dropped out. One thing we didn’t see on the list is the stripping of privacy rights for domain name registrants.

The only missing link in all of this is the fact that we still don’t have access to the current version of the agreement. As such, there’s always that possibility that it would be premature to declare victory. Still, it’s very hard to say this is anything other than a significant positive step in the right direction.

Drew Wilson on Twitter: @icecube85 and Google+.

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