TPP IP Chapter Leaked, Confirming It's Worse Than ACTA

from the no-wonder-it-was-kept-secret dept

We’ve been waiting a long time for a major leak of the secretive TPP agreement, and thanks to Wikileaks, we now finally have it (pdf – embedded below). It’s long and heavy going, not least because of all the bracketed alternatives where the negotiators haven’t been able to agree on a text yet. Even though the draft is fairly recent — it’s dated 30 August, 2013 — it contains a huge number of such open issues. Fortunately, KEI has already put together a detailed but easy-to-understand analysis, which I urge you to read in full. Here’s the summary:

The document confirms fears that the negotiating parties are prepared to expand the reach of intellectual property rights, and shrink consumer rights and safeguards.

Compared to existing multilateral agreements, the TPP IPR chapter proposes the granting of more patents, the creation of intellectual property rights on data, the extension of the terms of protection for patents and copyrights, expansions of right holder privileges, and increases in the penalties for infringement. The TPP text shrinks the space for exceptions in all types of intellectual property rights. Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.

Although many areas are touched by the draft’s proposals — access to life-saving medicines would be curtailed, while the scope of patents would be extended to include surgical methods, for example — the effects on copyright are particularly significant and troubling:

Collectively, the copyright provisions [in TPP] are designed to extend copyright terms beyond the life plus 50 years found in the Berne Convention, create new exclusive rights, and provide fairly specific instructions as to how copyright is to be managed in the digital environment.

Here are some of the term extensions being proposed:

For the TPP copyright terms, the basics are as follows. The US, Australia, Peru, Singapore and Chile propose a term of life plus 70 years for natural persons. For corporate owned works, the US proposes 95 years exclusive rights, while Australia, Peru, Singapore and Chile propose 70 years for corporate owned works. Mexico wants life plus 100 years for natural persons and 75 years for corporate owned works. For unpublished works, the US wants a term of 120 years.

A more technical issue concerns the use of the “3-step test” to act as a further constraint on possible exceptions to copyright:

In its current form, the TPP space for exceptions is less robust than the space provided in the 2012 WIPO Beijing treaty or the 2013 WIPO Marrakesh treaty, and far worse than the TRIPS Agreement. While this involves complex legal issues, the policy ramifications are fairly straightforward. Should governments have a restrictive standard to judge the space available to fashion exceptions for education, quotations, public affairs, news of the day and the several other “particular” exceptions in the Berne Convention, and more generally, why would any government want to give up its general authority to consider fashioning new exceptions, or to control abuses by right holders?

That’s a good example of how TPP is not just trying to change copyright in favor of the maximalists, but also to rig the entire process in favor of strengthening it in the future. Here’s another one, where TPP wants to stop any return to copyright systems that require registration — something that has been suggested as a way of solving some of the problems that arise because of copyright’s automatic nature:

The TPP goes beyond the TRIPS agreement in terms of prohibiting the use of formalities for copyright. While the issue of formalities may seem like a settled issue, there is a fair amount of flexibility that will be eliminated by the TPP. At present, it is possible to have requirements for formalities for domestically owned works, and to impose formalities on many types of related rights, including those protected under the Rome Convention. In recent years, copyright policy makers and scholars have begun to reconsider the benefits of the registration of works and other formalities, particularly in light of the extended terms of copyright the massive orphan works problems.

As you would expect, TPP wants strong protection for DRM; but even here, it manages to make things worse than they are:

The copyright section also includes extensive language on technical protection measures, and in particular, the creation of a separate cause of action for breaking technical protection measures. The US wants this separate cause of action to extend even to cases where there is no copyrighted works, such as in cases of public domain materials, or data not protected by copyright.

This would make it illegal to circumvent DRM even if it has been applied to materials that are in the public domain — effectively, enclosing them once more. Finally, it’s worth noting that under the section laying down damages for copyright infringement we read the following:

In determining the amount of damages under paragraph 2, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

It’s exactly the phrasing that was used in ACTA, and which turned up in the recent free trade agreement between the EU and Singapore. That encapsulates well how TPP builds on ACTA directly, while the other measures discussed above show how it goes well beyond it in many respects.

That’s the bad news. The good news is that we now have a very recent draft of what is perhaps the most contentious section of the agreement. In the weeks to come, we’re likely to see many detailed analyses exposing just how pernicious this proposed deal will be for the public in the negotiating countries. The hope has to be that once they find out, they will make their feelings known to their political representatives as they did with SOPA and ACTA — and with the same final result.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

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Comments on “TPP IP Chapter Leaked, Confirming It's Worse Than ACTA”

Subscribe: RSS Leave a comment
The Real Michael says:

Re: Re: Re: Well...

Shades of Pelosi and the ACA. I mean why should the public be afforded the right to read through the proposed legislation, or in this case a treaty construed entirely by corporate entities, when they can simply fast-track it and bypass public opinion?

I don’t often speak this strongly but screw this government. They’ve done absolutely nothing good for this country.

Anonymous Coward says:

Sounds like more laws to prop up legacy industries. that no longer innovate. Instead they litigate against young, innovative companies. Forcing these young companies out of business through expensive, frivolous court battles.

Then, once the young upstart has been bankrupted, they buy the patent for pennies on the dollar and the legacy industries create a product that’s half as good, and costs twice as much money.

Anonymous Coward says:

Re: Re: Re:

That could be very unfortunate. Adding another incentive for large corporations to burry inventers in expensive lawsuits to get patents voided would potentially make matters far worse.

The only way to stop legal capture is to stop legislation and then you risk oligotropies forming and bullying competitors out of the market.

There is no easy solution.

JMT says:

Re: Re:

“Sounds like more laws to prop up legacy industries. that no longer innovate. Instead they litigate against young, innovative companies. Forcing these young companies out of business through expensive, frivolous court battles.”

Actually to me it sounds like more laws to prop up a declining country that no longer innovates. Instead they ‘litigate’ against smaller and/or developing countries through so-called trade deals that are supposed to benefit all parties equally but in practice always seem to massively favour the US.

Pragmatic says:

Re: Re: Re:

Agreed. I don’t like it, but you’re right. That’s what we get for outsourcing production to the Far East and India. So what do we do to get it back? Is it too late?

Of course, you realise Americans get screwed by this too, right? America the COUNTRY doesn’t get anything out of this, only the corporations do, and they are loyal only to themselves.

Hell, they don’t even pay much in the way of taxes so what do we owe them?

Anonymous Coward says:

Re: Re:

I personally never trusted that “traitor” (he was never on our side in the first place). I didn’t vote in any election in recent history because I knew neither candidate was on my side. If Kerry, McCain, or Romney were president, it would be exactly the same.

Forget the next Bush, Obama’s the next Mao, and the TPP is his Great Leap Forward and Cultural Revolution in one package.

Anonymous Coward says:

Re: Re: Re:

I didn’t vote in any election in recent history

Yeah, whatever, bub.

There were both Green and Libertarian candidates on the ballot during the last presidential election in my state. And if you can’t stomach Greens or Libertarians then you can even get a ballot and intentionally spoil it, or even not mark it at all before casting it.

If nothing else, you should register to vote and cast a ballot in elections ’cause that way when you call up your senator or representative, then you get to say, ?Hi, I’m a voter in Mytown?? Otherwise, when you call their offices up you have to say, ?Hi, I don’t vote but I’m calling you up regardless?? Now, it’s true, either way, I don’t think they just hang up on you, but.

Stop the Vote says:

Re: Re: Re: Whatever Bub, don't be naive

You cannot vote you way out of corruption in an inherently corrupt system. No matter what party you pick they will become corrupted as soon as they take power.

The only way to end the madness is for everyone to simply stop voting. It is the only way to peacefully force change at this point. The government must have a percentage of voters to validate their existence without this mandate they must change.

Stop voting now and demand change. We need a whole new form of government based on scientific evidence of efficacy. A system designed to resist corruption not embrace it.

Stop the vote! Do it now while we still can.

silverscarcat (profile) says:

Re: Re: Re:2 Whatever Bub, don't be naive

That doesn’t help. In fact, not voting makes things worse. Cuz if you don’t vote, other people will. Even if you get only 10% of the population voting, that’s 10% who’ll vote for someone that’s REALLY bad.

And then things get worse.

Only way to stop this corruption is to vote and vote different people all the time.

Anonymous Coward says:

Re: Re: Re:3 Whatever Bub, don't be naive

We must all stop voting and 10% is not enough to keep a government running if the other 90% are choosing not to vote and are demanding a new system. Congress has less than a 9% approval rating. You cannot vote your way out of this, it is asinine to believe you can.

Everyone who continues to vote still believes the system can continue working. The problem is it cannot because it is inherently corrupt.

Don’t be a naive to the truth, Stop the Vote while you still can!

Pragmatic says:

Re: Re: Re:6 Whatever Bub, don't be naive

An anarchist revolution?

Followed by a bloodbath and social and political repression to keep the new system in place, right?

Why don’t you look up the history of revolutions and their consequences and get back to us? If you weren’t so in love with violence you’d realise that silverscarcat is right.

Brazenly Anonymous says:

Re: Re: Re:4 Whatever Bub, don't be naive

If you must lodge a protest vote or a vote of no confidence and actually want your voice to be heard, might I suggest a write-in ballot with the name specified as “Persona non existere.” [Literally: No person stands out]

The Latin makes it sound official*, the meaning is fairly obvious even if you don’t know Latin and it is obviously not the name of any person. The need for a vote to actually be cast is to provably demonstrate that you aren’t voting for some reason other than being lazy. Currently that critique is sufficient to prevent you from rallying others to your cause.

*Sounding official is important only because the first criticism reached for should a protest oriented vote ever actually be voted by a large portion of any population will be to play off the voters as idiots. Latin verbiage stands in juxtaposition to that at the shallow level, ensuring the minimal review necessary to have a chance to capture attention.

Anonymous Coward says:

Re: Re: Re:4 Whatever Bub, don't be naive

I disagree, voting is more important than never, we need to vote in a different way that is all.

Instead of electing people on promises, we make the laws outside congress and elect the people who will follow that plan.

Also map the other government functions to see who is taking care of it and their history of doing so.

An please stop voting for lawyers, accountants and celebrities, vote for the office post guy maybe he can do better.

Anonymous Coward says:

Re: Re: Re:3 Whatever Bub, don't be naive

Hehe, that is exactly the same idea I have. Short times in office means less time to get corrupted and lose sight of what politics was meant to be.

I think presidential is another matter, where you have to either clamp your nose and vote like they do in Italy or vote in protest. If you think Greens or Libertarians may be an improvement in the general direction, it may be a more effective protest vote. If you fear that any of those you could vote for had a chance, voting blank or write in is always a safe protest!

Anonymous Coward says:

Re: Re: Re:4 Whatever Bub, don't be naive

There are 2 problems with it.

1 – New people need time to get up to speed on the issues, so this could create a lot of pain for any country.

2 – It doesn’t address the problem of the other part of the government the one that is responsible for collecting data and drafting solutions for problems which is owned by other interests.

art guerrilla (profile) says:

Re: Re: Re: Re:

actually, in my precinct, i wouldn’t be able to file a ‘spoiled’ vote: it is a bubble filled ballot that goes into an optical scanner on my way out, if it doesn’t read it for some reason (‘spoiled’), it gets spit back out and i have to ‘correct’ it for it to be accepted…

i will not bore kampers with how even a relatively benign system of optical scanners can be scammed and hacked…
as with stalin, it doesn’t matter who votes, it matters who controls the vote counting machines…

(a CLOSED, PROPRIETARY system of software/hardware… huh, i’m sure nothing could go wrong there…)

art guerrilla
aka ann archy

Internet Zen Master (profile) says:

Re: Re:

Is that apology for the 2008 vote, the 2012 vote, or both?

And yes, Obama has turned out to be a complete schmuck. Going into the corrupt hellhole located Maryland and Virginia and trying to please everyone made him a complete sucker for the legacy industries (and any other special interest that approached him. At least it feels that way).

Anonymous Coward says:

Re: Re:

“I owe everyone an apology for my Obama vote. Here it is: I’m sorry, I thought he might turn out to be less of a schmuck than he is.”

Sorry, but unless you will disavow voting for another party again your apology is worthless. Any candidate that has ran in the past decade would be probably and shitty as Obama. Obama is practically no different from Bush… If Bush had passed Bush Care before Obama it would have still been just and shitty.

Anonymous Coward says:

Can you imagine a computer program being copyrighted for 200 years. With how fast computer technology evolves, do you honestly think a computer program will even be relevant to the world in 200 years time?

The greed and selfishness of these multinational corporations never ceases to amaze me. Nor does their short sightedness!

Kenneth Michaels (profile) says:

Criminalization of Personal Copying

This version of TPP effectively criminalized a person carrying an iPod full of “pirated” music for personal listening – but the text somewhat hides this fact. It criminalizes infringement on a “commercial scale”, but given that our MP3 players can carry more music than found in a physical store, everyone is in the “commercial scale” category. It specifically criminalizes “commercial scale” even for “infringements that have no direct or indirect motivation of financial gain.”

We’ll all be criminals unless we can show where we got licenses for each song!

alternatives() says:

Re: Criminalization of Personal Copying

What does this do to the “media taxes” on Music CDs, minidisks or other media that have been extracted to compensate for the losses?

We’ll all be criminals

You already are. If ignorance of the law is no excuse, how many people have the knowledge of all of the laws they are under so that they are not breaking them?

Anonymous Coward says:

So if circumventing DRM is illegal, are screenshots illegal now?

If circumventing DRM is illegal, even on publicly available information, that raises alarming possibilities.

What if someone makes a DRMed database of publicly available information, and I take a screenshot of some of the data to use in a powerpoint slide, and upload it to the Internet?

I’ve effectively just circumvented the DRM, because people can now view some of the data in the database for free, even though it’s publicly available data already.

And then what if the DRM is just plain crappy, such as it looks at the clock on your computer to determine how long your subscription lasts?

What if I turn my clock back to 2010 after my subscription expires and I’m now allowed to use the database again because my computer says it’s 3 years before my 1 year subscription expires? Am I suddenly eligible for jail time or hundreds of thousands of dollars in massive fines if the person I bought the DRMed database finds out?

Rikuo (profile) says:

Re: TPP not actually copyright: it's POWER for corporations.

Yes, we know it’s all about power for corporations, and that supporting copyright expansion “for the artists” is just a rallying cry, an excuse. Yeah, great insightful thought there…not!
Also…avoid treaties? What, all treaties, of all kinds? So…what’s your replacement then? Come on, you’ve been whining about it (for a few months now) you’ve got to have the solution. If you’re going to chastise Mike for not having a solution to the copyright problem when he talks about, then logically, you’ve got to have a solution to the treaties problem when you talk about it. Or are you doing to have double standards, AGAIN?

ryuugami says:

Copyright > human life?

Although many areas are touched by the draft’s proposals — access to life-saving medicines would be curtailed, while the scope of patents would be extended to include surgical methods, for example — the effects on copyright are particularly significant and troubling

While I’m firmly on the side of copyright reductionists (anything more than 10 or so years is ridiculous), in this case I have to say you’re overdoing it.

The effects on copyright in this document are a complete an utter insanity, yes. While it may not be your intention, you’re essentially saying that a lot of people may die (as implied by a lack of access to life-saving medicines and such) and then immediately following it with “But leaving that aside, COPYRIGHT! Now THAT’S the real problem we should focus on!” It kind of… undervalues the human life, don’t you think?

I’m not saying you shouldn’t di(scu)ss the copyright part of the document; that’s one of the main points of this site, after all. I just think you could’ve framed it better – as it stands, you come across as an asshole, and that in itself makes a lot of people immediately dismiss your entire argument.

Sorry for the rant; as I said, I consider the proposed (and current) copyright laws an insanity and fighting them is important, but some things are more important still.

The Real Michael says:

Re: Re: Copyright > human life?

Ryuugami wasn’t disputing whether or not Techdirt’s editors and readers knew that corporate bodies are selfish and remorseless, as is evidenced by their complete lack of regard for our rights and well-being (much like the government…). Rather, he was taking issue with the fact that the article just blows right over the fact that medicines would be further restricted as a direct result of the TPP. Since this section could have potentially life-threatening consequences, it far outweighs IP in its significance.

I hope Techdirt’s editors prioritize human life over corporate IP…

Right now our rights are being threatened by corporate fascists, but always remember that the power ultimately lies with us.

Anonymous Coward says:

although the whole issue is extremely troubling, taking even more away from the people, which was not the intention of copyright to begin with, a further extremely troubling point is that even after being defeated, this ‘negotiation’ has the same wording as the ‘negotiation’ that was previously defeated! think what would be said and what would happen if the situation was reversed and something went the way the copyright people wanted, there is no way in hell that it would ever be allowed to be brought to the ‘negotiating’ table in the future. the copyright people would go absolutely nuts! the double standard coming into play again, as usual! i hope that now the cat is out of the bag, there is all hell let loose over this! i bet everyone feels the same but i am totally fed up and pissed off at certain few wealthy people telling the rest of the world what they can and cannot do! it’s about time they were fucked off out of it for good!!

nasch (profile) says:

Re: Re:

a further extremely troubling point is that even after being defeated, this ‘negotiation’ has the same wording as the ‘negotiation’ that was previously defeated!

Same thing I was thinking. They will just keep bringing this stuff back over and over and over until it passes or they don’t have enough money to get the ear of politicians any more. They have infinite patience and infinite corruption, but not infinite time. I hope the public has the will to keep pushing back until they no longer have the power to push through this kind of thing. I think that will be many years yet.

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