How The TPP Agreement Could Be Used To Undermine Free Speech And Fair Use In The US

from the dangerous-stuff dept

We’ve been writing a lot about the Trans Pacific Partnership (TPP) agreement over the past few years. There are many, many problems with it, but the two key ones are the intellectual property chapter and the investment chapter. Unlike some who are protesting TPP, we actually think that free trade is generally a good thing and important for the economy — but neither the intellectual property section nor the investment chapter are really about free trade. In many ways, they’re about the opposite: trying to put in place protectionist/mercantilist policies that benefit the interests of a few large legacy industries over the public and actual competition and trade. We’ve already discussed many of the problems of the intellectual property chapter — which is still being fought over — including that it would block the US from reforming copyright to lower copyright term lengths (as even the head of the Copyright Office, Maria Pallante has argued for).

And, last week, Wikileaks leaked the investment chapter, which is focused on corporate sovereignty provisions, officially known as “investor state dispute settlement” or “ISDS” (named as such, in part, because the negotiators know it sounds boring, so they hope the public won’t pay attention). As people go through the details and the fine print, they’re finding some serious problems with it. Sean Flynn has a very in-depth look at how the combination of these two chapters — the IP chapter and the investment chapter — could very likely threaten fair use (and, with it, undermine the First Amendment).

The full details as to how are a bit tricky to understand, because it involves digging through the leaked versions of both chapters, and understanding some of the subtle language choices, but it’s a serious concern. Flynn’s article also goes through the history of how such corporate sovereignty provisions have been expanded and increasingly used over the past decade or so. But the key part is this: the investment chapter certainly can (and will) be read to cover intellectual property as well, including the idea that a company can invoke the ISDS process if it feels its “intellectual property” has been “expropriated” in some manner. The word “investment” in the investment chapter is defined incredibly broadly and explicitly includes “intellectual property” as well as “other tangible or intangible, movable or immovable property.” It also, importantly, notes that an investment, for the purpose of ISDS, covers:

every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.

Now, it’s no secret that the legacy entertainment industry is no fan of fair use (even if they often rely on it themselves). While fair use is officially part of the law in the US, the entertainment industry just recently fought very hard to block it in the UK and Australia, arguing (ridiculously) that fair use would harm innovation.

Even where there are very strong arguments for fair use — such as in helping the blind access works — the entertainment industry has twisted the so-called “three step” test from the Berne Agreement to argue that that is the most that is allowed for fair use. The three step test is actually really about limiting fair use, rather than enabling it. It is in the Berne agreement (as a relatively recent addition) as one possible “exception” to copyright, but not the only one. However, the haters of fair use like to pretend that it is the only one allowed under that agreement.

Under the three step test, “exceptions” to copyright occur when there are:

limitations and exceptions to exclusive rights to (Step 1) certain special cases (Step 2) which do not conflict with a normal exploitation of the work and (Step 3) do not unreasonably prejudice the legitimate interests of the rights holder

And, of course, in the US, fair use goes way beyond that already. And, as Flynn points out, it appears from the leaked text of TPP, the US would now be opening itself up to an ISDS challenge from a foreign owned company (remember: Universal Music is owned by a French company, Sony Music is owned by a Japanese company and Warner Music is owned by Russians…) that the fair use doctrine itself “expropriates” its “intellectual property” rights by going beyond the three steps test. Here’s Flynn:

And here is a major one lurking in the shadows. Many copyright intensive industries are hostile to the U.S. fair use doctrine and many of the decisions of courts emanating from it. There have been arguments raised from time to time that the doctrine or its applications are contrary to the so-called Berne 3-step test requiring that limitations and exceptions to rights be limited to certain special cases, not conflict with a normal exploitation of the work and not unreasonably prejudice the legitimate interests of the author (see this rebuttal from Gervais et al.). No other country has attempted to sue the U.S. or the nearly dozen other countries around the world that have fair use. But will the content industry be so reticent with such challenges in the future? With the TPP ISDS chapter, they will not have to in 40% of the global economy.

And this isn’t so far fetched. As we’ve been discussing, under existing ISDS/corporate sovereignty provisions in NAFTA, Eli Lilly is currently suing Canada for $500 million because Canada refused to grant it some patents. Eli Lilly is arguing that this “expropriated” Eli Lilly’s “intellectual property” and took away its “expected profits.”

Is it that difficult to believe that a recording studio or movie studio might make a similar argument on a fair use determination on one of its copyright-covered works?

And, if fair use is undermined, so is free speech. As we’ve noted, the Supreme Court itself has long argued that current fair use doctrine is a necessary “safety valve” in making sure that copyright does not violate the First Amendment. In other words, fair use is a key part of your First Amendment rights.

And yet… the USTR is basically putting in place a plan and system to undermine this, because the big copyright players are among the very few people who are allowed to see the negotiating text and to “advise” the USTR on what should be in it. Once again, it would seem like the most obvious way to deal with this would be for the USTR to release the negotiating documents, so that the public would be aware of what’s being negotiated, and could discuss the possible consequences — like how the current rules have the potential to undermine fair use and free speech. But, for reasons that the USTR still will not explain (perhaps because they reveal the USTR’s true reasoning for such provisions), it refuses to do so.

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Comments on “How The TPP Agreement Could Be Used To Undermine Free Speech And Fair Use In The US”

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Median Wilfred says:

Treaty obligations vs Constitutional Obligations

So, just an average US citizen here.

If TPP gets ratified by the US Senate (one way or another), how does it play against the US Constitution? Suppose, after TPP goes into effect, Presidential Candidate A copyrights (or trademarks, or whatever) the phrase “Vote for B”. Will Candidate A be able to raise a legal ruckus over posters or lawn signs that read “Vote for B”?

I realize that defenders of the TPP will try to use “loopholes” or close readings to poke holes through my argument, but still… what will happen?

That’s for a big case. What about a smaller case? Will the NFL be able to let an affiliate station of the network that runs Monday Night Football show highlights while preventing the competing stations from showing highlights? What about other news? Can someone use copyright to shutdown news stories?

These are all basically insufferable restrictions on freedom of speech, and benefit only big corporations and multi-nationals. It will take some years for Joe Sixpack to be restricted to the point of changing US law, but it will come. They can’t put DRM on pencils and paper.

Anonymous Coward says:

Re: Re: Treaty obligations vs Constitutional Obligations

Yes the Constitution trumps all however that still doesn’t stop any government agencies from eclipsing your rights while telling you it is for your own good.

It all comes down to this question, “is the US Constitution enforced correctly and constantly by everyone?”

I would argue it is expected to be that way but that the answer is no it is not.

Anomalous says:

Re: Re: Treaty obligations vs Constitutional Obligations

Nevertheless the Constitution has already been abused/perhaps I should say vitiated over NSA surveillance. Such documents as Constitutions only have the authority and power imputed to them. If Mr Big ignores them and the constitution/s are ignored then the latter don’t matter. Mr Big does whatever he wants.

Anonymous Coward says:

Re: Treaty obligations vs Constitutional Obligations

If TPP gets ratified by the US Senate (one way or another), how does it play against the US Constitution?

As I understand it, they’re pitching the TPP as an “Executive-Congressional agreement” rather than a treaty.

Curiously enough, Reid v Covert (1957) also concerned an agreement that was not actually a treaty.

Mike Masnick (profile) says:

Re: Treaty obligations vs Constitutional Obligations

If TPP gets ratified by the US Senate (one way or another), how does it play against the US Constitution?

The Constitution does trump the TPP, but that doesn’t mean it won’t still cause problems. What happens is that you get a phalanx of lobbyists arguing how we have to “comply with our international obligations” or all hell will break loose, and then Congress tries to figure out ways to “work around” the situation.

Add to that, things like the WTO and the ISDS panels, and what might happen is that even if the Constitution “wins” and blocks the implementation of the treaty, the US is then “punished” — either through monetary fines (taxpayer money) or other punishment (like the WTO saying that countries can ignore other US laws as “compensation”) and so the US still faces pressure to comply.

Anonymous Coward says:

Re: Treaty obligations vs Constitutional Obligations

Taking the exact provisions and questioning the constitutionality is a bit to the noisy side.

Mostly ISDS will be a targeted court for protecting investments against political interference. TRIPS has some protection of fair use and breaking those would also be bad. Besides, these agreements mostly aren’t changing laws, so unless existing legislation is un-constitutional, the specifics of the agreement should only be able to lock existing legislation.

There are massive problems with ISDS in areas like legal interpretation, jurisdiction, equality for the law of ISDS rulings and generally standards for ISDS. But willy nilly can sue all they want with outrageous claims, as long as the ISDS tribunals are competent in spite of their deficiencies, they should turn down the unreasonable.

Anonymous Coward says:

Re: Re: Treaty obligations vs Constitutional Obligations

as long as the ISDS tribunals are competent in spite of their deficiencies, they should turn down the unreasonable.

So, you are counting on a reasonable tribunal system. They will just go to the highest bidder and we will get more high justice vs. low justice.

tqk (profile) says:

Re: Re: Re: Treaty obligations vs Constitutional Obligations

So, you are counting on a reasonable tribunal system.

Didn’t that work well with the FISA courts. I think what they get out of it is privacy, (eg.) from millions of Canadian taxpayers who don’t even know they’re on the hook for billions (trillions?) because Canada thinks Eli Lilly’s attempting to manipulate the patent system. We the public can be so bloody noisy and distracting with all our calls for transparency and oversight! Sigh.

John Fenderson (profile) says:

Re: Treaty obligations vs Constitutional Obligations

Mike explained the realities very well, but I wanted to address your narrow question specifically:

“If TPP gets ratified by the US Senate (one way or another), how does it play against the US Constitution?”

When a treaty is ratified, it becomes federal law and plays against the Constitution the same as any other federal law does.

Anonymous Coward says:

Re: Treaty obligations vs Constitutional Obligations

A political candidate wouldn’t be able to copyright a phrase like that since it’s possibly too short and definitely too derivative and common a phrase, regardless of which name you insert. They likely wouldn’t be able to trademark it because the trademark would be too generic and Candidate B’s lawyers would file in opposition to granting the trademark anyway. In the end, Candidate A would just come out looking malicious and petty.

Median Wilfred says:

Re: Re: Treaty obligations vs Constitutional Obligations

wouldn’t be able to copyright a phrase like that since it’s possibly too short

Sweet Jesus, didn’t I predict exactly this situation? The weirdly large fraction of anonymous posters that are staunch TPP advocates (when the vast majority of the population doesn’t know what “TPP” stands for) would find holes to pick with the specific argument. If I hadn’t given a specific, then I’d be accused of making things up. Go outside and play hide and go fuck yourself, you ninny.

Anonymous Coward says:

the aim of this and other similar ‘deals’ isto try to turn the planet into a giant corporation! the aim, obviously, is to allow the 1% to rule over everyone and everything. with so many Conservative-like governments being in power and the financial crisis being blamed, not on the institutions for lending money to people but on the people for having the audacity to ask for loans, it has been the best opportunity for it to happen. couple in the removal of all rights of the people to be able to sue companies and the rights of companies to sue governments and we have the most dangerous financial setting ever! disagree? fine. wait and see what happens if the TTP and TTIP get voted through, with the ISDS parts almost intact. then crap will hit fan because the only ones with any rights will be the companies that will be using 5ltrs of water to make 1ltr of coke, or the company that sues a town because it refuses to allow a factory to be built that will have toxic residue, leaking into the ground water. the list is endless and there is very little being said and done in the USA against these deals, so guess where the greatest benefits will be felt?

Anonymous Coward says:

Here’s what we can do, plan internet blackout to make pople aware and help wikileaks expose more the trade documents!

Contact the internet defense league team members to do their cat signal and blackout their websites such as Wikipedia, Reddit, etc.

This our chance to get more people to know about the trade deal if you take the action to call the websites to blackout the internet and get more followers on Facebook and twitter.

Anonymous Coward says:

The subject has an assumption...

“How The TPP Agreement Could Be Used To Undermine Free Speech And Fair Use In The US”

The TPP, by definition, undermines free speech and fair use in the US.

The entire concept of international trade agreements that are above the law of the land and are not negotiated in public for the good of the people by the people undermines free speech and fair use.

There’s really no reason to go further, although breaking it down for people who don’t understand what rights these agreements strip away from citizens is still useful.

David E.H. Smith says:


But, how many ‘savvy’ Americans & their global corporate associates are ‘poised’ to make windfall profits from their international cross investments & pre planned treaty ‘arrangements’ at the direct expense of the harmless non shareholders, ie. 95% – 99% of America, et al?
While the good sales folks of Wall St. may prefer to tell their ‘Enron-able’ customers that were also the victims of ‘The Preliminary Foray of The Wall St. Meltdown’, et al, that it’s just some Unions that are fighting back, how much of the Fighting Back of Unions against the Secret, Unethical & Anti-Democratic Arrangements of The Global Treaties’ ‘Death-Star-Chamber’ Tribunals, can be understood in the context of the harmless NON Shareholders, including Union members, fighting to Survive (not ‘thrive’) Against the Uncaring, ‘Profits at Any (body else’s) Costs’, SHAREHOLDERS & their Colluding, Global Corporate Leaders?
– Wall Street Journal, blog, Mar. 25, 2015

Gain a political ‘Smidge’, Lose (‘Hidden’ & Secret Costs) a Lot; The NET EFFECT. How many Years will Paying Tribunals’ Penalties Bush Back tour Retirement Date?
Global Corporate Economy Conniving to Get Harmless NON Shareholders to Pay Trillion$ in Court Costs, Punitive ‘Penalties’, etc.?
No Treaties = Corporations/SHAREHOLDERS pay for Their Own ‘Mistakes’.

‘Fast Tracking’, TPP corp. ‘U.S.’s’ Feeble Attempt to Avoid Court; SHAREHOLDERS & NON Shareholders Await Supreme Court’s Findings to Proceed.

How Many Preferred Shares of TPP, C-CIT, TTIP, CETA, et al, Generated Enterprises are You Selling your Right to Sue the Global Corporate Economy for? ‘New’ Shareholders Can Say ‘NO’ to & Over-Rule TPP, CETA, TTIP, et al, Plans?

Will corp.’USA’ et al, & Feds to Prepay $Billions for All ‘Trade’ Treaty/’Arrangements’, et al, Secret (‘Death-Star-Chamber) Tribunals’ Punitive Damages to Protect Home State’s Taxpayers? Other States, Municipalities, et al, “…(we) need to control corp. USAs ‘Contributions’ “.

Undemocratic, Higher Taxes & More Cuts to Services to Pay Secret Penalties; NON Shareholders Have to Pay corporates USA, Germany, France, Japan, Australia, Canada, et al, & their SHAREHOLDERS.

But, If Not PUTIN; ‘The WHITE KNIGHT’, then Who Do YOU Want to Bankroll the Saving of the harmless NON shareholders of the World from Fast Tracking TPP’s, CETA’s (TTIP) Secret ‘Death-Star-Chamber’ Tribunal Penalties?
Will China, Iran, the Muslim World, et al, Support Putin in Suits?
How about Warren Buffett, &/or, the ‘coveted’ Hong Kong investor, et al?

It will be good for, not only the NON shareholders of the enterprises that can be generated by the on-going global ‘cooperation’ of corporate treaties, agreements, partnerships, et al, including the Trans Pacific Partnership, the EU – Canada CETA, TTIP, the China – Canada Investment Treaty, et al,
for the potential shareholders, as well,
who are quite interested to know if President Xi Jinping (China) will support Russia as a co-member of B.R.I.C.S. when President Putin uses his potential role as ‘The White Knight’.

And, while President Putin’s potential support as ‘The WHITE KNIGHT’ in the development of the TPP, et al, litigation below can dramatically off-set the hundreds of billions of dollars due to the present & future sanctions leveled by American led, et al, corporations & financial institutions via their governments’ signing their global corporate economic treaties/’arrangements’,
and the potential for making trillions of dollars for the Russian economy over the next 30 – 40 years & beyond,
are the citizens (SHAREHOLDERS & NON shareholders) of Germany & JAPAN just being prudent in wanting to wait for the outcome of:
1) The Submission to The SUPREME COURT of CANADA & the highest court in Germany, et al, to make their findings regarding ‘The Submission’:
‘The SHAREHOLDERS & Corporations of AMERICA, CHINA, Japan, Germany, Canada, et al
the harmless Canadian NON shareholders, both; Native & non Native, et al’?

2) ‘The MERKEL (Chancellor of Germany) Letter; To Sue, or, Be Sued?’ ?

Have the federal representatives of the nations that are the potential signatories of TPP, TTIP, et al, willingly provided the NON shareholders of US, Canada, Europe, the Trans Pacific nations, et al, with the aforementioned information? Are the federal representatives, et al, depriving the NON shareholders of Canada, et al, of the due diligence information that enables the family of the NON shareholders of Canada, et al, to make informed decisions regarding their financial planning?

And, would a reasonable person conclude by a preponderance of the evidence, &/or, beyond a reasonable doubt, that these documents, et al, demonstrate that the SHAREHOLDERS of AMERICA, CANADA , the EU & Trans Pacific nations, et al, really do not care which NON shareholders pay them the punitive penalties, etc., by way of their secret (‘Death-Star Chamber’) TRIBUNALS, as long as its not the SHAREHOLDERS who pay & not their corporations regardless of which country the corporations:
1) operating from,
2) maintain their headquarters,
3) use to do their cyber banking, accounting, ‘taxation’, etc.
4) et al?

And, re; the CHINA – Canada Investment Treaty (C-CIT), et al, is it understandable why the ‘coveted’ Hong Kong investor & his associates are ‘concerned’ with the aforementioned findings of The SUPREME COURT of CANADA, et al, & the effects of the potential findings, et al, on the EU, AMERICA, the Trans Pacific nations, et al, treaties with CHINA, et al?

In regard to arms sales (and other ‘contentious’ products & services & investors, repatriating profits, et al) ; how about the sale of arms (non nuclear) in general in regard to the ‘trade’ treaties that are continuing to be secretly negotiated and how will the Tribunals, both; B.R.I.C.S. & non BRICS, adjudicate, decide & penalize the NON SHAREHOLDERS for the sale of legitimate, semi- legitimate & ‘illegal’ sales of arms within the signatories nations & the those of others, &/or, unaligned? Of particular, interest is China, which does have an treaty with Canada, which puts China ‘at odds’ with other arms manufacturing & nuclear powers that it (China) does not have any ‘arrangements’ with.
Are these types of questions that your politicians & the corporate lobbyists calls ‘forget-me-nots’ (‘Buyer Beware’) that will be (maybe) worked out after the fast tracked signatures are obtained?

And, what do you think is the significance of the line in The Submission to The Supreme Court of Canada ‘…And, lest one forgets that the revelation of the present perilous international treaties/’arrangements’ began with the regard for the rights of Native Canadians as per the Treaties/’arrangements’ that corporate Canada & the Government of Canada have ‘foisted’ upon Native Canadians…’? What are the various ways that this line will cost the SHAREHOLDERS, et al?

On the other hand, it may be worth repeating yet again,
‘What the TREATY of VERSAILLES was to the 20th century PALES in COMPARISON to the TPP, CETA, C-CIT, NAFTA, et al, in the 21st’.

And, how will YOUR submission to YOUR highest court IMPROVE upon The Submission that is presently before The Supreme Court of Canada?

David E.H. Smith
– Researcher
– ‘Qui tam…’
Please consider sharing the enclosed information & questions with 10 members of your family, friends, associates in order that they can use the due diligence info to make more informed decision about their families’ financial planning, & then they can share it with 10 others…
For more Information & Questions re; The Relationship between Human (Nature) Rights & Economics by way of the C-CI Treaty, the CET Agreement, TPP, et al, and The WAD Accord

Anonymous Coward says:

Unlike some who are protesting TPP, we actually think that free trade is generally a good thing and important for the economy.


“Free trade” is a term of propaganda used to front for neoliberal trade imperialism.

You actually appear to understand this in micro, since you understand how it works for intellectual property, when you say:

but neither the intellectual property section nor the investment chapter are really about free trade.

But the effect of this sentence – since it implies that the rest of the treaty is actually about some wholesome thing called “free trade” – is to provide cover for neoliberal economic imperialism.

Those “others who are protesting the TPP” happen to have the same acquaintance with their pet fields as you do with yours, sufficient to know that, insofar as it pertains to the environment for instance, or medicine, it is not “really about free trade” either.

That’s because none of it is about “free trade,” because free trade is made up word for people like Thomas Friedmann to propagandize from the pages of the New York Times and from the “radical center” for neoliberal economic hegemony.

And when you say it is “generally a good thing for the economy” (irrespective of whether that is debatable) please remember that not everyone who reads your blog is American, and that “the economy” for them means “the X economy” where X is a country other than the US where they come from, and perhaps a “free trade” agreement that leverages US economic clout to coerce, on pain of exclusion, whole blocs of X countries into international treaties which lock them into an exploitative, dysfunctional neoliberal world economy where state intervention is yet further prohibited to the benefit of the moribund US economy and to the eternal detriment of millions is not “good for the economy” for those people.

Anonymous Coward says:

The rules are already in the Berne three-step test.
This is a trade agreement, meaning it’s not necessarily a matter of federal / penal crime.
The point of the TPP is simply to give the establishment a leverage platform to do what they already do, only cheaper than before (obviously at the expense of the citizens of the signing countries).

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