Where TPP Goes Beyond ACTA — And How It Shows Us The Future Of IP Enforcement

from the coming-your-way dept

ACTA and TPP have much in common. That’s no coincidence, since they are both born of a common desire to move away from multilateral forums like WIPO that are relatively open to scrutiny, to invitation-only groups negotiating behind closed doors. That lack of transparency has allowed all kinds of extreme measures to be proposed without any countervailing arguments being heard about why they are neither fair nor sensible.

But in many ways, what’s really interesting is how the two treaties differ, because it’s clear that in many places TPP goes well beyond ACTA — it’s not simply a transposition of ACTA to the Pacific Rim. As such, those differences represent the next turn of the copyright enforcement screw, and give us a fascinating insight into where the copyright maximalists are likely to be pushing for more when it comes to drawing up successors to ACTA and SOPA, say.

That fact makes some recent work by Carrie Ellen Sager particularly useful. She has prepared a detailed comparison of the US proposal for a TPP Chapter on IP (the only information we have on TPP so far) with the relevant sections of ACTA. There are two versions: a full comparison table (pdf) and one with the highlights (pdf). In what follows, I’ll be quoting from the latter.

Here’s a typical way in which TPP is even more stringent than ACTA:

Under ACTA, a country may give its authorities the power to force an ISP to identify an infringer to rightholders, subject to certain conditions. Under TPP, a country shall establish administrative or judicial procedures for forcing an ISP to identify an infringer to rightholders, without ACTA’s conditions.

That’s important, because much of ACTA is optional in this way: TPP indicates how the copyright industries will be pushing to turn its frequent use of “may” into “shall” when it comes to implementation. They will be able to do that because ACTA sets a floor for enforcement, but allows signatories to go beyond its terms if they wish.

On “Technological Protection Measures” TPP has two nasty turns of the infringement screw:

TPP goes beyond ACTA by applying provisions on technological protection where circumvention is carried out unknowingly or without reasonable grounds to know.

and

TPP goes beyond ACTA by explicitly limiting the possible limitations and exclusions to the TPM circumvention rules, while ACTA gives a country free reign to create exceptions and limitations it finds reasonable.

The second of those is particularly troublesome, since it reduces the scope for signatories to introduce more balanced copyright laws even if they wanted to.

In the criminal penalties section, there are the following differences:

TPP goes beyond ACTA by omitting safeguard that such penalties shall be consistent with “the level of penalties applied for crimes of a corresponding gravity.”

TPP goes beyond ACTA by requiring party members to establish policies or guidelines to “encourage judicial authorities to [actually] impose those penalties.”

TPP goes beyond ACTA by requiring criminal penalties for copyright or related rights infringements “that have no direct or indirect motivation of financial gain.”

The net effect of those changes is to make the criminal penalties much harsher, and to push for them to be applied in every case. The last of the above differences means that even casual copyright infringement caused by swapping files with friends might be subject to criminal penalties.

There’s also bad stuff on the civil penalties side:

TPP goes beyond ACTA by requiring pre-established damages to be “sufficiently high to constitute a deterrent to future infringement.” Additionally, unlike ACTA, TPP provides that in patent infringement cases, the damages may be increased up to three times the injury.

TPP goes beyond ACTA by adding patent infringement to the list of case types for which a losing party may be required to pay court costs and attorney’s fees (in addition to copyright and trademark infringement cases).

Applying ACTA to patents was made optional towards the end of the negotiations, and it’s interesting to see TPP putting them back as compulsory. The other elements make losing even more expensive, which patent trolls will love when they come to make their threats against real innovators who will be forced to pay up rather than take a chance of being hit with crippling damages.

As these excerpts make clear, TPP effectively tidies up all the lose ends that ACTA left dangling — generally imposing far harsher penalties, adding back patents, and making everything compulsory rather than optional. It also provides us with a clear sense of what ACTA 2.0 will be like unless it is negotiated with real transparency that allows all parties, including civil groups and the general public, to have their voices heard.

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Comments on “Where TPP Goes Beyond ACTA — And How It Shows Us The Future Of IP Enforcement”

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29 Comments
Liz (profile) says:

This seems like a typical negotiating tactic. You ask for a LOT more than you know anyone else is willing to give. Then you work your down to something more “reasonable” in order to get close to what you really want out of a deal.

Keep using this process and you can slowly ratchet up the concessions from others.

Unfortunately, this process doesn’t end unless there’s a major push from the opposition. Once power is gained, it is rarely ever relinquished.

balaknair (profile) says:

the losing party?

” a losing party may be required to pay court costs and attorney?s fees “
Does this mean if the plaintiff loses the infringement case, tries mass IP trolling(like ACS Law or Righthaven) or submits a frivolous DMCA takedown they can be made to pay court costs and attorney’s fees of the defendant? Or is it business as usual and this only applies if the loser is the defendant?

Anonymous Coward says:

Re: the losing party?

This obviously applies to all parties.

If the defendant looses then the defendant is required to payy all costs for both parties.

If the troll looses then it is required to pay all costs for both parties but, alas, the shell company lack any such resources and so the defendant will have to pay their own costs anyway.

Machin Shin (profile) says:

“sufficiently high to constitute a deterrent to future infringement.”

I think this makes it pretty darn clear that the guys writing these laws do not understand what is going on. Most of the guys that are major players in this game, such as the guys running pirate bay, are likely to get ticked off proportional to the fine you throw at them. As a result, the harder you attack them the harder they will work at making you look a fool.

Anonymous Coward says:

Our existing IP laws are a result of a complete lack of moral standards on the part of IP extremists and government established monopolists (copy protection lengths, a one sided penalty structure, retroactive extensions. No good justification for any of it). These thugs have absolutely no regard for morality whatsoever.

MrWilson says:

Re: Re: Re: Re:

And that is the false dichotomy that the IP maximalists have pushed. They have people like Lars Ulrich screaming vitriolic tirades at the fans as if its the fans trying to take something away from the artists. The fans and the artists are getting screwed by the middlemen. You can probably find an equal number of articles about the RIAA companies getting in trouble for things that affect the customer, such as price-fixing, as you can find for things that affect the artist, like not paying royalties.

jupiterkansas (profile) says:

Re: Re: Re: Re:

You are right – they believe the rights holder should have complete and absolute control of whatever they have the rights to. If the creator gives up their copyright to someone else, that’s the creator’s prerogative and it’s moral.

They live in a world of absolutes. They don’t like fair use because it’s murky and open to interpretation, unless they can precisely define and contain it such as in a library setting or at a university.

These absolutes were alright when the only way to copy something on a massive scale was through massive industrial processes (duplicating 35mm film, pressing records onto vinyl) but the world we live in now is one where everybody can copy on a massive scale, and may not even be aware that what they’re doing is illegal.

It’s reached the point where it will be easier to change the laws (relax them) than change people’s behavior.

Ed C. says:

Under ACTA, a country may give its authorities the power to force an ISP to identify an infringer to rightholders, subject to certain conditions. Under TPP, a country shall establish administrative or judicial procedures for forcing an ISP to identify an infringer to rightholders, without ACTA?s conditions.

When copyright holders, most especially the major ones, routinely fail to tell what is or is not infringing, how do they expect anyone else to do it for them? Of course, the point is that they don’t care. They just want the public to pay for enforcement of their private privilege. Talk about going medieval.

TtfnJohn (profile) says:

The comments indicate a couple of things, as I read them.

First the people at the table are far from idiots. What they want is control which is what TPP seems set to give them. It’s what they wanted with ACTA but couldn’t get.

Second the people at the table don’t, in any way, represent artists. It makes for wonderful PR, the specter of starving artists in a grotto somewhere creating music, stories, movies, sculpture and so on plays well with certain constituencies, notably politicians and culture mavens. In the meantime artists continue to be forced, effectively, to sign over their copyrights to publishers, recording companies and their assorted hangers on, movie companies and even your letter to the editor. Or posts on blogs, even.

Far more often than not the creator gets little for their work after all the Hollywood creative accounting gets done with them. More likely for a new act, author and so on, they’ll end up owing money.

The artist doesn’t count, free speech doesn’t count, not even culture counts in the end all that counts is the rights holders profits and their ability to control the gates.

For once, I’m happy that Canada isn’t at the table. Unlike ACTA that means we don’t automatically have to comply with the worst of it. Seems there’s a use for supply management in dairy and eggs after all!

Anonymoose Custard (profile) says:

How do we show them that this is self-destructive?

I’ve been racking my brain trying to think of a way to show them that these kinds of rules are like putting a gun to their own heads – enforcing it will only kill them in the long run as their market ultimately abandons them and their assets shrink to nothing.

If they manage to get fair use outlawed, only outlaws will have the creativity to create. And then where will they get the content and inventions to sell?

An Anonymous Nerd (user link) says:

Well what if ACTA does not get passed

also as I told you guys the TPP action group on facebook has been reporting it has not been going to well Australia is saying they might pull out and also if ACTA does not get passed, doesn’t that mean TPP will have loose ends? And this is true then why are the MPAA and RIAA pushing for censor bill now? This could just let them pass it easy, Im just saying guys…do some detective work

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