A version of the Intellectual Property section of the Trans-Pacific Partnership, dated from May 11, was leaked to reporters earlier in the summer. However the full text was not available to viewed anywhere online at that time. Just a few days ago, Knowledge Ecology International released the full text of the Intellectual Property chapter. With the public release of this document, the Electronic Frontier Foundation has done a more in-depth analysis than was possible at the time of the initial leak.
One of the most striking things this leak revealed is that there is still considerable opposition to some of the most extreme proposals, and it suggests that a final agreement is still a long way off. One issue sees every other country involved in negotiations in opposition to the U.S. Most countries want to add a provision to protect individuals from false copyright claims, allowing judges to force the filer of the false claim to pay for any damages the victim sustained by the false claim as well as lawyer fees. U.S. opposition to this proposal is baffling, as these protections are already guaranteed under American copyright law. The U.S. may be planning on using this treaty as a reason to remove those protections in its own country, or attempting to stake a negotiating position to get concessions in other areas
Another point of contention is that many countries remain opposed to a U.S. proposal that would forbid the retransmission of any cable broadcast over the Internet without the permission of the of the copyright holder as well as the permission of the broadcaster. Getting permission from the copyright holder is reasonable and expected, but getting permission from the broadcaster would be treading new ground. It would give broadcasters a copyright-like protection over content they don’t actually own the copyrights to, which the EFF argues is both unnecessary and would crush innovation.
Another area of push-back is against a section regarding stealing and revealing trade secrets. When previous versions of the TPP were leaked, concerns were raised that the overly broad language in the section could be used to prosecute whistle-blowers and journalists who are trying to expose wrongdoing. In response to opposition from numerous nations, the U.S. has proposed a safe harbor provision for whistle-blowers. However, the EFF has pointed out how this safe harbor proposal is incredibly weak. For one thing, the safe harbor provisions would be optional and countries can decide whether or not to opt-in. Another weakness is that it only protects whistle-blowers who expose illegal actions. Since governments have the power to decide what is and is not illegal, whistle-blowers exposing government wrong-doing can expect little protection from this proposal.
Despite opposition to some proposals, in other areas opposition has completely crumbled. In previous leaked versions some countries had opposed a provision which would outlaw devices which can be used to circumvent DRM. This runs contradictory to the law in some countries which allows DRM circumvention for certain lawful purposes, and providing the means for DRM circumvention would also be legal if used for those purposes. Chile and Canada opposed this provision in previous leaked versions, but have since withdrawn their opposition. New Zealand made a counter-proposal that laws against DRM circumvention would only apply if that circumvention would be an act of copyright infringement. Australia had previously supported New Zealand’s proposal, but have since withdrawn it.
The EFF also notes that despite some minor positive changes from previous versions, and continued opposition to some of the more serious provisions, the document still contains some very dangerous provisions. Although the recent negotiations in Hawaii ended without any agreement reached, this treaty isn’t dead yet. For this reason, the EFF urges readers to contact political leaders and speak out against TPP.
Do you think the U.S. will have its way in TPP negotiations, or will other countries stand up to the U.S.? Leave your comments below.