Much of what has been analyzed prior to the final release was found in the various leaked copied (many of which posted by Wikileaks. Now that the final text of the TPP has been published, we decided to compare the final leak to the final leak to the officially released text to see what, if anything, changed last minute.
A lot of what we know in the Trans-Pacific Partnership (TPP) was gleaned from the final leaked copy published by Wikileaks. Now that the official text has finally been released, we decided to compare sections that drew concern from us in the Wikileaks copy to the final copy. The purpose of this is to see if there was any changes between the final leaked copy and the official text. If anything has fundamentally changed, we will, naturally, make revisions to our assessment of what is in the text.
As you can no doubt tell by the screen captures, the Wikileaks copy is on the top while the official text will be on the bottom. Click on image to enlarge.
General Provisions
As we can see here, the final heading of this article was chosen, but that is merely a clerical thing. Everything else about this section has remained the same. That means our original assessment stands:
Some people question whether or not countries have to actually implement all or some of the provisions in the chapter. This article seems to be clear that all provisions must be implemented and that the only flexibility is if countries want to implement more strict laws that go above and beyond this agreement. It isn’t necessary, but this agreement says that there is no harm in that so long as the restrictions in the agreement aren’t circumvented in any way.
Ratification of Other Treaties
This section can be quite eye opening. The most obvious example is that the names of all the treaties have changed. In the leaked copy, they are written out in a much more full manner. In the final copy, they are abbreviated – sometimes to the point where it is completely unreadable. For instance, “WIPO Performances and Phonograms Treaty (1996)” has now been abbreviated to “WPPT”. The question becomes, why abbreviate these treaties down so much in the first place? The likely answer is that some people will read “WIPO” and instantly cringe. If it’s ridiculously abbreviated, it’s more likely that people will gloss over it thinking “no harm, no foul – I certainly don’t get what these letters mean”. So, confusion was a possible goal of this extreme form of abbreviation so as to avoid certain criticism.
Another noteworthy point to make is the fact that the order in section 2 has changed. Treaty C and treaty D has swapped places. The only thing that can be affected by this are the footnotes. The Wikileaks copy reads:
2 A Party may satisfy the obligation in Article QQ.A.8.2(a) and (d) by ratifying or acceding to either the Protocol relating to the Madrid Agreement concerning the International Registration of Marks (1989) or the Singapore Treaty on the Law of Trademarks (2006).
Meanwhile, the official copy reads:
1 A Party may satisfy the obligations in paragraph 2(a) and 2(c) by ratifying or acceding to either the Madrid Protocol or the Singapore Treaty.
2 Annex 18-A applies to this subparagraph.
To our knowledge, this changes little so far as our criticism is concerned (which was made two leaks ago), so it still stands:
While this is one of a number of treaties this agreement demands members to adopt, we have some familiarity with the WIPO (World Intellectual Property Organization) treaties. The treaty was controversial for a host of reasons including the prohibition of circumvention of things like Digital rights Management (DRM). Why this is controversial is the fact that it doesn’t take into account legal exceptions various countries have like Fair Dealing (Canada) or Fair Use (US). the treaty would give rise to the more famous and more controversial US law known as the Digital Millennium Copyright act (DMCA). This can be found on the Wikipedia entry of the treaty. Another controversy of WIPO was the numerous attempts to bring in what is known as the broadcasting treaty. What the treaty would have done is create a new layer of copyright over the transmission of content. So, if a broadcaster airs something that is in the public domain, the broadcaster would have exclusive rights of that work regardless if they played a role in the creation of that content. One posting about this can be found on the Electronic Frontier Foundation (EFF). Suffice to say, WIPO has had many controversies in the past.
Unmasking of Domain Name Owners
At quick glance, it loos like these sections have changed quite a bit. However, a more careful reading reveals that changes are purely cosmetic. In 1a, for instance, instead of everything being contained in one paragraph, the points are now spread out in their own line. Again, this changes nothing in the meaning. In 2, the text is identical, just spread across two different pages now.
Knowing this, our original assessment of this section, again, still stands:
The idea here is that if you register a domain name, you can no longer be officially anonymous. This would affect countries like Canada that allow domain name owners to refuse to reveal their identity based on privacy concerns. This provision would remove that kind of protection. There is a provision that suggests the information must be in accordance to privacy laws, but that would have more to do with social insurance numbers rather than contact information.
The Creation of a TPP Commission
There are two subtle wording changes. The more subtle of the two is the fact that what is being referred to when talking about the commission. In the leaked copy, it was called the “TPP commission”. In the official text, it’s simply referred to as a “commission”. This certainly adds a layer of vagueness, but it still leads to the same kind of questions: what are we referring to when talking about a “commission”. What powers does this “commission” have? These positions don’t deviate much from our original assessment:
So, apparently, the TPP Commission is to watch over the pharmaceutical industry and direct countries (AKA “parties”) as to when to meet to discuss regulations as it pertains to the markets should a discussion need to take place outside of the 10 year. This paragraph suggests that the TPP Commission is also an international body that oversees many countries and how the government regulates themselves. What else would the TPP Commission be tasked to do? We don’t know. This is the only mention of it in the entire chapter. It does raise a number of troubling thoughts, however. Who would run the TPP Commission? Who would be appointed or elected to the TPP Commission? Is this part of the international tribunal system that has been previously mentioned from past leaks? Will the TPP Commission enforce compliance for the laws mentioned in the TPP? Even though it’s not mentioned anywhere else in this chapter, it could very well still affect how countries implement laws related to copyright in some kind of core text or general provisions section that has yet to be leaked or otherwise disclosed.
The second change in the wording is this: in the Wikileaks version, we see the following:
…the Parties shall consult after 10 years, or as otherwise decided by the TPP Commission, to review the period of exclusivity provided in…
The official reads as follows:
…the Parties shall consult after 10 years from the date of entry into force of this Agreement, or as otherwise decided by the Commission, to review the period of exclusivity provided in…
So, the only difference really is clarifying when the “parties” meat. The leaked text simply says every 10 years while the official text says it’s 10 years after the agreement comes into force. Largely a clerical thing and changes nothing to what we’ve flagged previously.
Length of Copyright
The only real change is the removal of bracketed text at the beginning. This means photographs are no longer explicitly mentioned in the TPP. That does not mean that photographs are exempt from the TPP. Photographs could really fall under the “work” word as a “work” can include a photograph. Ultimately, all this change seems to do is remove a few redundant words. After that, the text is pretty much a word-for-word copy of the other version, so no difference can be noted about that section. If a country has life plus 70 years, no changes to copyright terms would be needed. If the term is longer (i.e. Mexico’s notoriously long copyright length), that’s perfectly fine. The only countries that would have to change their laws are those who have a shorter term (like the many countries that still have life +50 years).
Criminal Liability Added to Anti-Circumvention Laws
There is a lot of text to go through, but the first difference we spotted was the changing of judicial to administrative. The Wikileaks version says this:
(Civil Judicial Proceedings relating to TPMs and RMIs).
The official version says this:
(Civil and Administrative Procedures and Remedies).
On the surface, this may seem to eliminate government involvement, but the term “administrative” actually muddies the water. For all we know, it could be a more general term to mean governmental, but it could also expand the definition to mean just about any government body that could be set up.
The second difference we found is towards the end. The Wikileaks version says this:
… criminal procedures and penalties to be applied where any person is found…
The official version says this:
… criminal procedures and penalties to be applied if any person is found…
Essentially, “where” became “if”. The difference it makes in the overall meaning, to our knowledge, is nothing. Just a very subtle re-wording that changes nothing in the meaning as far as we’re concerned. Beyond that, the section has remained completely unchanged and is a word-for-word copy. Therefore, our original analysis still applies:
One thing to note is the fact that the language of “commercial scale” is nowhere to be found in this instance. Instead, we see the terms “commercial advantage” and “financial gain”. The placement of this is extremely vague. Does the commercial advantage have to relate explicitly to the alleged infringement or could it be indirectly related in some way to trigger criminal charges? In any event, this appears to be a move away from targeting commercial piracy to encompass many more people than what is the norms in many countries. Anti-circumvention, for some countries, isn’t anything new (like the US). What may be new is the added element of criminal liability added over top of the charges where it was typically civil liability before.
“Deterrent” Level Liabilities
As we can see, the section is a word-for-word copy. No wording has changed at all. That means our original analysis still applies:
What this means exactly is unclear. What constitutes deterrent level? What might be likely is statutory damages. As we’ve seen in the US, statutory damages can mean that you get sued for millions of dollars for sharing a dozen or so songs without authorization. There is still debate as to how that conforms to the constitution. Still, that could be what negotiators have in mind here.
Government Mandated Spying on Copyright Infringement
The only difference is, once again, negligible wording. The Wikileaks version reads as follows:
…relevant information concerning intellectual property rights infringements as well…
The official version reads as follows:
…relevant information concerning infringements of intellectual property rights as well…
Surprisingly, the official version was revised to be more wordy. The meaning doesn’t change at all. Since everything else is identical, our original analysis still applies:
Given the very general term of infringement, this would almost suggest that governments are being mandated to monitor the Internet directly for copyright infringement among other things. This represents the outsourcing of something major copyright holders pay for directly onto the government (and thus, taxpayers).
Unlimited Damages
The immediately obvious thing is the fact that two paragraphs have swapped locations. The change in location doesn’t really mean anything has changed as far as meaning is concerned, though.
Another big change is this:
Wikileaks version:
… its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of…
Official version:
… each Party’s judicial authorities shall have the authority to consider, among other things, any legitimate measure of…
This is probably the first instance where a change actually meant some meaningful measure of clarity for the laymen. If you notice, the term “inter alia” has been removed. What was it replaced by? “among other things”. Of course, for those with legal training, what is the definition of “inter alia”? Google says the definition is literally “among other things”. As a result, the only change is that the more Latin terms were swapped out for more English terms. The meaning is, naturally, exactly the same thing. On the plus side, this change does make the text a little easier to read for those with less formal legal training.
Everything else is actually a word-for-word copy of the Wikileaks version. So, our original analysis still stands:
What we’re mainly focusing in on is the last paragraph – specifically this: “any legitimate measure of value the right holder submits, which may include lost profits”. What is considered “lost profits”? How can this be measured? The simple answer is that this is not necessarily a calculable thing. Instead, this is simply a number that can be made up by rights holders (which is not unheard of by any means). Because the rights holders have the ability to pick any number and call it “lost profits”, then the damages could be anything. The sky is the limit here so far as the rightsholders are concerned. For example, a rights holder could sue an alleged infringer for downloading Justin Beiber music. When asked, the rightsholder could say that the lost profits are $500 billion. Who’s to say that copyright won’t be extended in the future? Who’s to say that inflation might take over in the future? Who’s to say that Justin Beiber music won’t become a national currency in a couple of countries? These provisions could set up this sort of scenario. Reality is just a distraction, after all.
In our previous analysis, we also found further information regarding unlimited damages:
In this case, it’s a word-for-word copy which means our original commentary still stands:
So, if the rights holder in question feels like piling on even more damages. They can elect to impose damages that would be “deterring future infringements”. So, maybe $500 billion won’t teach the infringer a lesson. Maybe it would be better to fine the person $1 Trillion just to drive home the message.
Damages and Destruction of TPM Circumvention
There is some structural differences, but that seems to only serve to further break up the text. There is a difference towards the beginning though:
Wikileaks version:
…each Party shall provide that its judicial authorities shall, at least, have the authority to…
Official version:
…each Party shall provide that its judicial authorities have the authority at least to…
Once again, all it is is a re-wording of that line. The meaning is still the same.
The second difference:
Wikileaks version:
…order the type of damages available for copyright infringement, as provided under its regime in accordance with Article QQ.H.4…
Official version:
order the type of damages available for copyright infringement, as provided under its law in accordance with this Article
The change means that this part is much more vague. It can include what this section was originally meant to reference, but it can now include other sections as well.
Beyond that, everything is essentially a word-for-word copy. As a result, our original analysis still stands:
The problem here is that if the “product” happens to be an open source project that has been released into the public online, how is it possible to even carry through a “destruction” order?
Authority to Enforce Copyright Laws Even Before Infringement Takes Place
There is a few tiny differences between the two versions.
The Wikileaks version:
Each Party shall provide that its judicial authorities have the authority to require the applicant, with respect to provisional measures in respect of any intellectual property right, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant’s right is being infringed…
The official version:
Each Party shall provide that its judicial authorities have the authority to require the applicant for a provisional measure in respect of an intellectual property right to provide any reasonably available evidence in order to satisfy the judicial authority, with a sufficient degree of certainty, that the applicant’s right is being infringed…
There are two differences here. The first is a general re-wording on the provisional measures part. More significantly, however, is who is being required to prove something. The original Wikileaks version, for whatever reason, said that applicants have to prove to themselves that infringement is taking place. It would seem that this was an error and was fixed to say that the judicial authority has to be convinced instead. While it was clear that there was a silly mistake in the wording, this has no effect on our original analaysis:
In other words, authorities can target you if you have infringed on copyright, or if they believe infringement is “imminent”. This, of course, raises a whole host of problems because under what circumstances can authorities take you down when you are accused of being about to infringe on copyright? The fact that you don’t even have to infringe on copyright to have your door busted down by the feds for copyright infringement raises a number of red flags.
Seizing Your Cellphone at the Border
The next section we flagged covered multiple paragraphs previously.
Only difference was the removal of a comma. Meaning and wording is still the same.
Again, only difference was the removal of a comma. Meaning and wording is still the same.
The differences look bigger than they really are. The actual differences were cosmetic in that parts of the paragraph were split into sub-paragraphs. There was some minor re-wording down to accommodate the splitting of the paragraphs, but the meaning is largely the same for the most part. The only difference was the adjustment in language with respect to 30 days. Instead of 30 days, it is now 30 working days. This will expand the window authorities have to submit a report to the copyright holder a little to account for weekends and holidays no doubt. With exception to that, the meaning of this section remains the same.
This section is, once again, a word-for-word copy between the two versions.
With regards to all of the above, out original analysis still stands (we’ll include the preface for the next section for convenience)
So, if your cell phone is suspected of containing copyright infringing content, whether it is being brought in the country, brought out, or in transit between countries, authorities can seize it and alert copyright holders immediately.
Should you get caught with allegedly infringing content on your cellphone, authorities have the right to fine and administer penalties against you:
There’s only minor wording differences between the two versions that don’t change the meaning. An example would be:
Wikileaks version:
Where a Party provides administrative procedures…
Official version:
If a Party provides administrative procedures…
A slight wording adjustment, but nothing that would make this section any different so far as overall meaning is concerned.
This is our comment that prefaced the next section previously:
Then, what happens to your cellphone after you get questioned? Well, authorities can destroy it of course:
The only difference between these two versions was “where” was changed to “which”. Nothing that changed the overall meaning we are noting, though.
In the next section, we prefaced it with the following in our original analysis:
So, who pays for the destruction or holding of your cellphone? Naturally, you do:
There were actually a couple of wording changes here. For one, “where” was changed to “if”. For another, there was the removal of a comma. A third change was that “such” was changed to “that”. Once again, this changes nothing in the meaning as far as we’re concerned. The two versions are otherwise identical.
We, again, prefaced the next section previously with this:
The question is, are exceptions to this? Isn’t it a little extreme to smash your cellphone? Well, there is one exception:
There was some minor wording differences here.
Wikileaks version:
Each Party shall include in the application of this Article goods of a commercial
nature sent in small consignments.
The official version:
This Article also shall apply to goods of a commercial nature sent in small consignments.
Essentially, this sentence was made to be slightly less wordy.
Our analysis still applies:
So, if you have your cellphone in your luggage somewhere, then maybe it’ll get a pass. Of course, how many people pack their cellphone in their suitcase while traveling? Are there any other exceptions to this rule? None that we can tell.
Throughout the entire section, precious little was changed. What has changed was largely wording to say the same thing. A time window for authorities may have been adjusted and to whom must be convinced of evidence was changed, but little else was changed. All of our analysis in that whole section remains intact and unchanged.
Anti-Cam Laws
The anti-cam laws we flagged previously have clearly carried over to the official version:
This is an exact word-for word copy. We then remarked with the following:
Oh, and, of course, aiding and abetting is out of the question too:
To which we followed up with this section:
There are two noticeable differences between the Wikileaks version and the final version. “Requires the parties” was changed to “Requires a party”. The other difference is that “Parties shall ensure” has been changed to “each Party shall ensure”. Really, we’ve gone from plural to singular in that paragraph. Beyond that, nothing has changed (which includes the fact that the meaning hasn’t changed).
We then commented with the following:
Are you going to jail if you are camming a movie? […] yup:
Once again, this section is an exact word-for-word copy. No differences are found in the text.
Site Blocking and Traffic Shaping
The next section we flagged was the following:
The only noticeable difference is the fact that “to address such infringement” has become “to address such copyright infringement”
Our original remarks still applies:
In other words, ISPs may not necessarily be on the hook for infringement of their users, but they do need to take measures to prevent the transmission and storage of copyright infringing content. Judging by the language here, this could include site blocking and traffic shaping (which would fit the bill here).
While, on the surface, that seems to simply apply to your standard ISP, a footnote would suggest that the same applies for services like VPNs as well:
If you are following along, you’ll notice that the official version almost seemingly removed the footnote behind the term “Internet service Provider”. At first, this may sound like a major change, but on closer inspection, the footnote has basically become a “definition” which is written out earlier on. This is the direct comparison:
As usual, this is basically a word-for-word copy and meaning is, once again, unchanged. The only actual difference is the fact that it looks like negotiators actually tried to obfuscate the meaning a bit while still trying to retain what was written into the agreement. We, of course, weren’t fooled.
Notice and Takedown
Here’s the next section we flagged.
The first change that we noted was the addition of a comma. This change does not actually change the meaning of this section though.
The second change is that “… disables access to material in good faith pursuant to and consistent with” has become “… disables access to material in good faith under” Essentially, the change means that this section has become less wordy and nothing more. Everything else is identical.
As a result, our original remarks, as usual, still applies:
What this provision would do is completely eradicate the notice-and-notice system that has proven to be effective in Canada and replace it with the much more draconian (in comparison) notice-and-takedown system. The former system is more of an innocent until proven guilty approach. The latter is a guilty until proven innocent approach. For countries that do not have a notice-and-takedown system, this is little more than importing American laws into other countries legal systems.
No Obligation for ISPs to Monitor Networks
This is yet another section that is a word-for-word copy. As a result, our original remarks still applies:
So, ISPs are off the hook when it comes to actively monitoring their networks. As we discussed earlier, that role appears to be being placed on the government instead.
Forcing ISPs to Hand Over Customer Information
The first difference we see is that “enabling a copyright owner who has made a legally” has become “that enable a copyright owner that has made a legally”. A slight re-wording, but no meaning was changed. Nothing else in the paragraph is different. as a result, our original analysis still applies:
If a copyright holder accuses of an IP address of copyright infringement, then the ISP is obliged to hand the subscribers information over. A few things are notably absent here. For one, there is no compensation for the ISP to look up subscriber information. For another, there is no mention of court oversight here. While discover of an IP address is common practice in the US, it is typically done through a judge. That judicial oversight appears to be stripped away in this case. This allows rights holders to be prosecutor, judge and jury over accusations of infringement because they have free reign to threaten people en-mass directly.
Coming Into Force
With exception to clarification on which section is being referenced, nothing has really changed. Our original analysis still applies:
So, all provisions must be adopted once this deal is ratified.
No Undercutting These Provisions
We remarked with the following:
Furthermore, if a country, say, comes to their senses and realizes that one of these things is questionable, the country cannot undo the damage caused by that law:
The only difference we found here was that “in effect as of the date of signature of this Agreement” has become “in effect on the date of signature of this Agreement”. Like a vast majority of the other changes, this is a simple re-wording and does not affect the overall meaning. As a result, our original analysis still applies both above and below:
This shows that this is truly and all or nothing approach.
Time Limit
We remarked at the beginning of this with the following:
Going even further, there is even a time limit to how long a country has to implement these laws:
This is a word-for-word reproduction of the section. As a result, our original analysis will, at the risk of sounding like a broken record, still apply.
Final Thoughts
After all of this, there was only two changes in the entire chapter of note. The first is that this chapter has clarified that copyright is life +70 years now. This is an extension from the international standard of life +50 years. The only other change in the overall meaning of this chapter that we could find revolved around border authorities smashing your cellphone. The official version clarified that authorities now have 30 working days to conduct their cell phone smashing and related activities revolving around copyright infringement. Before, it was simply 30 days. So, holidays and weekends might no longer count towards that 30 day window. Beyond that, the meaning is the same between the leaked Wikileaks version and the officially released copy.
One thing to note is that there were cases where meaning was obfuscated. The first really obvious case was the section dealing with treaty ratification. The treaties that are supposed to be ratified were abbreviated to the extreme. An example would be that “WIPO Performances and Phonograms Treaty (1996)” was abbreviated to “WPPT”. Clearly a case of obfuscating the meaning and making it more difficult to read and understand. In another case, a critical footnote was removed and was replaced by a vague “definitions” section earlier on. This revolved around the section dealing with VPNs and other services being forced to block sites and utilize traffic shaping. the meaning remained the same, but again, it was made much more difficult to read.
We had a section talking about final thoughts and it still applies here:
Consumer and digital rights organizations have called this final draft everything that they have feared coming to fruition. The EFF states that the leaked copy we just analyzed “confirms our worst fears about the agreement, and dashes the few hopes that we held out that its most onerous provisions wouldn’t survive to the end of the negotiations.”
From a consumer rights perspective, the EFF is correct on that assessment. If you support digital rights, this agreement represents a direct assault. It strips away many protections consumers have been given and implements laws that are extremely anti-consumer. Moreover, it’s extremely difficult to see how this is a trade agreement because there’s very little about this chapter that has to do with international trade. Instead, it seems to be more of a method to import undesirable laws from an international body, circumventing the standard methods of lawmaking (namely governmental representatives of the people writing the laws). At this point, making the argument that the TPP is simply about international trade after all of this is a position that is so difficult to maintain, it borders on extreme delusion. This agreement is about lawmaking. Everything above is either mostly about lawmaking, or is exclusively about lawmaking. The laws being proposed here is about serving corporate interests behind closed doors – a departure of what democracy is all about.
Some TPP advocates have made the argument that many people’s fears were sourced from the Wikileaks version. Because the final version was publicly released, that somehow made those arguments invalid. This word-for-word analysis pretty much obliterates that argument and proves that the original fears as sourced from the Wikileaks version have been confirmed. It also proves that the Wikileaks leaked version was authentic the entire time and there was no reason to doubt it.
We hope this analysis proves useful as the debate surrounding this agreement moves ahead.
Drew Wilson on Twitter: @icecube85 and Google+.
