New Secret Trade Agreement Could Create Global Three Strikes Law

ACTA May not have gone over as well as the US would have hoped, but that doesn’t stop any new secret agreement from forming. Among the provisions inside the Trans-Pacific Partnership Agreement (TPP) are increasing the copyright term to a minimum of 120 years, force ISPs to become copyright cops and effectively puts a three stirkes law in place.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The document was leaked recently and says that “The text is marked to be “protected from unauthorized disclosure,” and the USTR is seeking to classify the document until four years from entry into force or the close of the negotiations.”

One of the controversial provisions is as follows:

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 copyright owners in deterring the unauthorized storage and transmission of copyrighted materials;

(b) limitations in its law regarding the scope of remedies available against service providers for copyright infringements that they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf, as set forth in this subparagraph (b)


(iii) Qualification by a service provider for the limitations as to each function in clauses (i)(A) through (D) shall be considered separately from qualification for the limitations as to each other function, in accordance with the conditions for qualification set forth in clauses (iv) through (vii).


(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;

It gets even worse. It also compels ISPs to start censoring websites too:

(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. Each Party shall provide that any such relief shall be issued with due regard for the relative burden to the service provider and harm to the copyright owner, the technical feasibility and effectiveness of the remedy and whether less burdensome, comparably effective enforcement methods are available. Except for orders ensuring the preservation of evidence, or other orders having no material adverse effect on the operation of the service provider’s communications network, each Party shall provide that such relief shall be available only where the service provider has received notice of the court order proceedings referred to in this subparagraph and an opportunity to appear before the judicial authority.


(xi) Each Party shall establish an administrative or judicial procedure enabling copyright owners who have given effective notification of claimed infringement to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.

In short, as long as there is proceedings in a court, then the ISP must censor a given website – not necessarily that a website is found guilty of copyright infringement, but merely is accused of copyright infringement. What this opens the door to is rights holders accusing a massive number of websites of copyright infringement, forcing ISPs to censor all the websites in question. Of course, a proxy would be one way of getting around censorship, but the thought of an accusation of infringement can disable access to a website should be disturbing for those who support free speech given that false accusations aren’t uncommon to begin with.

Added to this is that claims of copyright infringement are, if this agreement goes in to effect, completely bi-passing the legal system. Even the DMCA in the US didn’t go this far. In the US, an IP address needs to be subpeonad by a court before identifying information can be retrieved from an ISP. Under the IPP, that legal step wouldn’t be necessary. All the rights holder has to do is demand the identities of alleged copyright infringers and the ISP must comply with the rights holder. It’s merely the removal of a layer of due process.

What’s worse is that this agreement would increase the length of a copyright term to over 120 years or 70 years after the authors death:

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, or

(ii) failing such authorized publication within 25 years from the creation of the work, performance, or phonogram, not less than 120 years from the end of the calendar year of the creation of the work, performance, or phonogram.

For a number of countries, the life plus 50 years wouldn’t be long enough, so a number of works that are falling in to the public domain would be ripped back out of the public domain again because of the 20 year extension.

Personally, what I find offensive more than anything else in this agreement is the fact that this lawmaking is considered classified. Why are these negotiations that would change criminal codes being kept in secret? Are these laws so bad that they must be hidden from public view to avoid public scrutiny? It’s really little more than circumventing democracy. One of the points of democracy is that everyone has a say in any lawmaking issue. If a person wants to be critical about a copyright law, they are free to do so. Censoring people outside of agreements like this has the potential to cut off dissenting voice, thus turning such laws into a dictatorial process. Looking at what is happening in some countries in Africa, that isn’t exactly the most popular kind of thing in the world.

Drew Wilson on Twitter: @icecube85 and Google+.

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