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.
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.