The Trans-Pacific Partnership Agreement Leaks Again

By Drew Wilson

The controversial Trans-Pacific Partnership agreement (TPP) has once again leaked. The freshly leaked details re-confirms some of human rights and activists worst fears about the Intellectual Property chapter. We go in-depth into this secretive agreement to show what (if any) has changed and what remains on this secret agreement between countries around the world.

There may be many news stories that surface on broadcast media in your area. However, what is not likely to appear in local newspapers or mainstream news broadcast is the latest revelations coming from the secretive Trans-Pacific Partnership agreement (or, as it is commonly referred to, the TPP in short). Major multinational corporations have direct access to it along with top negotiators who represent each individual country involved, but common citizens and even elected members of government are shut out of the process. How do we have access to some details of this agreement? It’s all thanks to Wikileaks which released a leaked copy of the updated draft agreement. We present to you full coverage of what is in this agreement as we read the details ourselves. For better referencing, we shall refer to the PDF version of this leaked copy.

Revealing Registrants of Domain Names

The first thing that drew our attention is this starts on page 20 and continues on to the next page:

Article QQ.C.12: {Domain Names on the Internet}
1. In order to address the problem of trademark [VN/MX propose: geographical indication and trade name] cyber-piracy, each Party shall adopt or maintain a system for the management of its country-code top-level domain (ccTLD) that provides:

(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, or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation;

(b) online public access to a reliable and accurate database of contact information concerning domain-name registrants;

in accordance with each Party’s laws regarding protection of privacy and personal data.

So, in other words, if the country you reside in allows for the private registration of a domain, this agreement would strip that layer of privacy away and expose anyone who has registered a domain. If there are privacy laws attached to this in a particular countries, the TPP would overrule that because of the provision that states that the system should not be “not overly burdensome” and that the database is “public access”. Note that this policy is to help with Trademarks, not necessarily issues of domain name squatting. This part of the agreement technically makes no reference to domain name squatting, though that doesn’t exclude it either.

The paragraph right after this section was rather puzzling:

Each party shall provide […] remedies against the registration trafficking, or use in any ccTLD, with a bad faith intent to profit, of a domain name that is identical or confusingly similar to a trademark

What does the term “registration trafficking” mean? Even one of the negotiators (namely Japan) requested clarification on this. One possibility is that we can see from here is that registrars that don’t necessarily simply bend to large corporate interests and refuse to take down a particular domain on free speech grounds could get branded as an organization responsible for “domain trafficking” and have the authority to take down the entire registrar. Of course, this is speculation on our part as this paragraph is rather unclear.

Ratcheting Up The Patent System

On page 29, there is the following:

1. Subject to the provisions of paragraph 2 and 3, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application.

The Parties confirm that:

(a) patents shall be available for any new uses or methods of using a known product

This type of language surrounding patents have been particularly problematic in the past. The fact that something involves an “inventive step”. This gave rise to the use of the term “on the Internet”. One case known as the Ultramercial case involved a company that claimed that it has a patent of watching commercials on the Internet back in September. The patent was upheld because the judge was convinced that putting a commercial on the Internet was likely hard to do. There was also heated debate back in 2010 where adding “on the Internet” was somehow the basis for being innovative (reference). The TPP, in essence, would exacerbate the problem and would likely export these problems to other parts of the world judging by the language being used.

Moving down to page 52 (admittedly, some of the content about pharmaceuticals is difficult for us to follow and pick through, but there is discussion of pharmaceuticals and marketing between the last reference and this next reference. We chose not to cover this because it seemed outside our scope of knowledge and/or interests), we found the following:

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 [MX propose: 100] [MX oppose: 70] years after the author’s
death;

For countries like Canada who have life plus 50 years, all of the copyright terms mentioned and debated over are longer. Is the new term life plus 70 years or life plus 100 years? That is apparently being debated still, but for a lot of countries, this means a copyright term extension no matter what.

Global DMCA

Moving to page 54, we find the following:

Article QQ.G.10: {Copyright and Related Rights / Technological Protection Measures}142

[US/AU/SG/PE/MX143 144 145 propose; MY/VN/BN/JP oppose146: (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 rights147 and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:

(i) knowingly, [CL oppose: or having reasonable grounds to know], circumvents without [CL oppose: authority] [CL propose: authorization] any effective technological measure that controls access to a protected work, performance, phonogram, [PE/CA/CL oppose: or other subject matter]; or

(ii) manufactures, imports, distributes, [CL oppose: offers [CA/CL propose: for sale or rental] to the public, provides, or otherwise traffics149 in] devices, products, or components, [CL oppose: or offers to the public] or
provides services, that:

(A) are promoted, advertised, or marketed by that person, [PE/SG/CL oppose: 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 [CA oppose: enabling or facilitating] the circumvention of any effective technological measure,

shall be liable and subject to the remedies set out in Article [12.12]. [CL propose: If the conduct is carried out in good faith without knowledge that the conduct in prohibited, a Party may exempt acts prohibited under this subparagraph that are carried out in connection with a nonprofit library, archive or educational institution]. Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, [CA/CL propose: museum,] archive, educational institution, or [CA/CL oppose: public noncommercial broadcasting entity,] [CA propose: any other nonprofit entity as determined by a Party’s law] is found to have engaged [CA oppose: willfully and for purposes of commercial advantage [CL oppose: or private financial gain]] [CA propose: knowingly and for commercial purposes] in any of the foregoing activities. [SG/AU/PE/CL155 oppose: 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]156 as applicable to infringements, mutatis mutandis. ][CL propose: No Party is required to impose civil or criminal liability for a person who circumvents any effective technological measure that protects any of the exclusive rights of copyright or related rights in a protected work, but does not control access to such work].

So, in other words, if you upload, say, a crack to a piece of software or find ways of jailbreaking your phone, you will be held criminally liable. The only exceptions are if you are a library or archive – in which case, the content can be preserved. For those that say that the TPP would create a global DMCA, this would certainly be evidence of that.

so, what is an effective technological protection measure? The TPP defines it as thus on page 59:

(f) 165 Effective technological measure means any [CA propose: effective] technology, device, or component that, in the normal course of its operation, controls access to a protected work

The Return of the INDUCE Act

Moving to page 60, we see the following:

In order to provide adequate and effective legal remedies to protect rights management information:

(a) each Party [VN oppose: shall] [VN: may] provide [VN oppose: that] [VN: legal remedies against] any person who without authority, and knowing, or, with respect to civil remedies, having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of [CA oppose: any] [CA propose: the] copyright or related right [VN oppose: ,] [VN: :]

(i) knowingly removes or alters any [CA/JP propose: electronic] rights management information;

(ii) [MY/BN/VN/CA/JP oppose: distributes or imports for distribution rights management information knowing that the rights management information has been altered without authority; or]

(iii) [CA propose: knowingly] distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, [CL/NZ/MY/SG/VN oppose: performances,] or phonograms, knowing that [CA/JP propose: electronic] rights management information has been removed or altered without
authority

The word “induce” might ring a bell for American observers of copyright. There was, in fact, a bill known as INDUCE Act that goes back all the way to 2004. From the Wikipedia entry:

The Act would amend title 17 of the United States Code which is related to copyrights, by adding a subsection to the end of section 501. The subsection would state the following:

Whoever intentionally induces any violation identified in subsection (a) of this section shall be liable as an infringer.

In subsection (g), “intentionally induces” means intentionally aids, abets, induces, counsels, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.

Nothing in this section shall enlarge or diminish the doctrines of vicarious or contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.

In short, if you induce (that is, convince or give rise to) someone into breaking copyright laws, you are also responsible for the act of copyright infringement. At the time, some felt that it was a law that was so “crazy”, that it never stood a chance at passing. While it didn’t pass in the US, guess what we see in the TPP: “intentionally induces any violation identified in subsection (a) of this section shall be liable as an infringer”. So, yes, the TPP also represents the return of the INDUCE Act nearly a decade after it’s defeat in the US government. Judging by previous provisions, you’ll probably be criminally liable no less.

Punishments of Infringement in the TPP

The question is, what are the punishments for copyright infringement under the TPP? For that, we look at page 71 which states:

(3) Pre-established damages shall be set out in an amount that would be sufficient to compensate the right holder for the harm caused by the infingement [VN oppose: , and with a view to deterring future infringements].

(4) In awarding additional damages, judicial authorities shall have the authority to award such additional damages as they consider appropriate, having regard to all relevant matters, including the [seriousness / extent / blatancy of the infringing conduct] and the need to deter similar infringements in the future.

So, it’s for whatever supposed damage that occurred to the rights holders as well as an additional punishment that would “deter”. This certainly has the potential to allow for multi-million dollar fines for something as petty as uploading a video with copyrighted music to YouTube.

Criminal Liability for Online Copyright Infringement

Another thing we’d like to note is found on page 83 which states:

1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Chapter, are available under its law so as to permit effective action against an act of trademark, copyright or related rights infringement which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.]

So, if you upload a copyrighted work on a file-sharing network, you could get thrown in jail as far as this provision is concerned.

The Introduction of ISP Level Censorship Upon Accusation

Turning to page 85, we find the following:

1. Each Party shall limit the liability of, or the availability of remedies against, internet service providers [when acting as intermediaries], for infringement of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services.]

[…]

[CL/BN/NZ/VN/MX propose; AU/US/SG/MY oppose: 2. The framework in Paragraph 1 [CA oppose: will only apply if an internet service provider meets conditions, including] [CA/CL/VN propose; NZ/MX oppose: shall be accompanied in
a Party’s law by]:

(a) [CA/NZ/CL/VN/MX propose: procedures for notifications of claimed infringement and for] removing or disabling access to infringing material [CA/CL/MX oppose: upon notification from the right holder through a procedure established by each Party]; and]

[CA/NZ/CL/VN273 propose: (b) legal incentives for internet service providers to comply with these procedures, or remedies against internet service providers who fail to comply.]]

So, while it is merely being proposed, ISPs would be considered mere conduits and be more or less immune from copyright infringement claims so long as they censor anything upon request of any rightsholder. This is wildly different from legal norms in many places around the world where if a website was accused of copyright infringement, then rightsholders must go to court and get an injunction first at the very least. Britain operates like this and some consider that regime to be oppressive given that entire lists are submitted for censorship. If the proposition is finalized and put in the text, it would remove that level of protection and mere accusations would compel ISPs to block a website – whether that accusation is justified or not.

Introduction of a Global Three Strikes Law

We now turn to page 89 to find the following:

[MY/NZ oppose: (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; and

So, in plain English, the three strikes law are in there. This policy has been repeatedly blasted by experts and academics and unreasonable and unfair. In addition, countries such as France have been backing away from the policy because it is a completely unworkable, unreliable, unreasonable. Yet, here we have, despite all the evidence that says a three strikes law is no solution for copyright infringement, here we have it in the TPP.

Punishment of Infringement Goes Beyond Three Strikes

Continuing on page 89, we see the following:

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 [CL propose: and users or subscribers] 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 [CL propose: , to users or subscribers] 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.]]

In other words, you can be dragged into court and not only be disconnected from the Internet from a three strikes law, but also fined as well on top of it all.

Some Criticisms

Having read this, my criticism of this whole process remains the same. Why are negotiators, behind closed doors, discussing changes to the criminal code (there are most certainly numerous references to criminal liability throughout the agreement) and hiding it from the public? Why are criminal code changes being negotiated under the guise of “trade” when this has nothing to do with trade in the first place? I personally have a real problem with all of this because it sets the precedent that individual countries can no longer write laws involving domestic issues. Instead, that is being outsourced to an international body and, when it is completed, the expectations that laws must be changed accordingly. Criminal laws are being written for lawmakers, not by lawmakers.

Another criticism I have is that since this is being sold as a great and wonderful treaty, why is it being built in secret? If it’s so great and positive for the world, there shouldn’t be a need to hide it. Yet, here we have something that is hugely and wholly secretive. When any hint of this is revealed to the public, then there is major controversy surrounding the contents of this agreement. That, to me, screams that this is a bad treaty. This should be dragged out into the light of day and, if necessary, ripped to shreds if the public disagrees with these provisions. This, obviously, isn’t happening.

Why are laws being proposed that have been proven over and over again to be ineffective? Few people even like the three strikes law. Why is it even in the agreement in the first place?

In the end, I say that there is nothing good about it. Read the samples I have selected in the agreement and ask yourself, “Do you agree with all of these provisions?” I certainly don’t. This agreement needs to be stopped in it’s entirety until the full text is revealed to the public. Let the public decide.

We should note that these observation and analysis is provided by someone who is familiar with copyright law, but not provided by a lawyer or anyone who has been trained in the area.

For other analysis, you can check out Michael Geist and the EFF.

Drew Wilson on Twitter: @icecube85



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