Full Text Of TPP Released: And It's Really, Really Bad

from the no-wonder-they-were-hiding-it dept

Yesterday, a month after it was announced that the TPP was “finalized,” the official text was finally released. Immediately after that, USTR (somewhat oddly) reposted the whole thing to Medium — apparently in an effort to appear transparent for an agreement that was negotiated for years in secret. The overall document has been broken out into many different sections, but if you add it all up it’s over 6,000 pages long. The Washington Post did what none of the governments actually did and made the document searchable. I spent much of yesterday trying to read through the various sections, and it appears to be super problematic. Along with the text, the USTR posted a bunch of nonsense propaganda about what they want people to think the TPP is really about.

But the problems with the TPP run deep: Despite earlier promises from both the USTR and Australia that intellectual property would not be subject to the “corporate sovereignty” provisions (which they call “investor state dispute settlement” or ISDS), they absolutely are. And this is a massive problem. It means that any country that’s a member of the TPP can effectively never move its intellectual property rules in the direction of better benefiting the public — because some foreign company will claim that this takes away their expected profits. Section 9.1 lists “intellectual property” as the type of asset that is a part of the ISDS process.

We already know what a mess this can create. Remember Eli Lilly is currently using NAFTA’s corporate sovereignty provisions to demand half a billion dollars from Canada, after Canada rejected two of its patents because Canada realized the drugs that Eli Lilly had tried to patent did not deliver the benefits the company claimed when trying to get the patent. Canada said that was a good reason to reject the patent. Eli Lilly claimed that this was taking away its assets and demanded half a billion dollars.

Now imagine what would happen if anyone tried to… say… shorten copyright terms? Or require registration for copyright? Or fix the patent system so that you can’t patent obvious and broad concepts any more? Does anyone doubt that any country that did so would be beset by these kinds of attacks, which wouldn’t even be handled by courts, but by a tribunal of corporate lawyers, often the very same lawyers these companies would hire for other work? Including intellectual property in the investment chapter is a poison pill designed to ensure that intellectual property can only continue to ratchet up, rather than back.

Now, there is a very limited “exception” concerning the “revocation, limitation or creation of intellectual property rights” if it’s “consistent” with the TRIPS Agreement — an earlier trade agreement regarding intellectual property. As KEI notes, this limited exception isn’t going to cut it:

The exceptions for intellectual property in the TPP investment chapter are important, and often designed to accommodate existing state practice in the United States or other countries, but one should not overstate the degree to which intellectual property rights are excluded. The meaning of the WTO TRIPS agreement and the TPP IP Chapter itself will be subject to review and arbitration led by private right holders, on topics such as “adequate” or “reasonable” compensation or remuneration for non-voluntary uses of intellectual property rights, the standards for granting patents, and other issues, to determine “to the extent” an action of policy is “consistent” with the TRIPS or the TPP IP Chapter. This not only leads to forum shopping (TRIPS and TPP IP obligations can be interpreted via TPP ISDS), but also empowers private right holder investors (and not consumers) to bring cases and benefit from sanctions against governments.

KEI also notes that these “exceptions” don’t apply to any of the new expanded IP requirements that the TPP has introduced — including things like much higher damages requirements and the possibilities of criminal charges for the vaguely defined “commercial scale” infringement.

What’s kind of amazing here is that we’ve spent years warning about problems with the “intellectual property” chapter and the “investment” chapter individually, and the absolute worst part of this agreement is the way the negotiators tied them together in a ridiculous and dangerous way. This is much, much worse than many of the things we feared would be in the agreement, and it’s made even worse by the fact that the USTR directly promised this would not be in the agreement.

There are a number of other problems as well: KEI warns that at least part of the e-commerce provision can be read to ban a requirement for open source software, which would seem to undermine certain open source licenses, like the GPL. Michael Geist notes that the document confirms that Canada basically has agreed to wipe out many useful copyright reforms from a few years ago, and to extend its copyrights yet again, robbing the public of the public domain. Of course, that raises the question of whether or not someone could make an ISDS claim that Canada is taking away their “investment” in Canada… Oh, who am I kidding. ISDS doesn’t apply to the public… just to companies.

There are also, as expected, serious problems for affordable medicine and healthcare, privacy, surveillance and more. Despite claiming to demand “nondiscriminatory treatment of digital products” and “cross border transfer by electric means” of information — an anti-censorship/blocking provision — the agreement lets Malaysia off the hook on such requirements.

In addition to that, last month we wrote about how it appeared that the negotiators had carved tobacco out of the ISDS section, but upon reading the whole thing, people are pointing out that it’s not actually true, as it makes that part voluntary for countries to decide themselves.

In short, the TPP appears to be a massive mess, and in some ways worse than we feared. According to some, concurrent with the release, President Obama told Congress of his intent to sign the TPP, which started the 90-day clock for Congress to “review” the agreement — conveniently making sure that much of the debate is limited by the end-of-the-year holidays, long Congressional “recesses” that happen around this time, and other key end-of-the-year business. In short, this agreement that was negotiated in near total secrecy (unless you were a big corporate lobbyist) is a really bad deal, and the administration is going to play every trick it can come up with to get it approved. Now would be a good time to let your elected officials know that they need to vote against the TPP.

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Comments on “Full Text Of TPP Released: And It's Really, Really Bad”

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66 Comments
That One Guy (profile) says:

Lest it be forgotten

Despite claiming to demand “nondiscriminatory treatment of digital products” and “cross border transfer by electric means” of information — an anti-censorship/blocking provision — the agreement lets Malaysia off the hook on such requirements.

Malaysia is the same pro-slavery, pro-mass murder country that was supposed to be the poison pill both for FTA and TPP, before the State Department made it clear that the USG is perfectly fine overlooking both if that’s what it takes to cram TPP through. I guess when you realize the other parties are willing to do anything, ‘overlook’ any atrocity, you might as well push for a few extra perks and exceptions while you’re at the table.

As for the rest, revolting, but not in the slightest bit surprising. They didn’t keep the thing secret for years for the public’s benefit after all, they knew it was going to be filled top to bottom with toxic clauses built from the ground up to benefit the few at the cost of the many, so it’s hardly surprising that that turns out to be exactly the case.

Now it’s just a matter of watching their PR bullshit machines spin into overdrive trying to defend the reaming the public will get if this gets passed.

Anonymous Coward says:

Re: Lest it be forgotten

worry not, it shall be forgotten.

Long have people failed to remember that eternal vigilance is the requirement.

Far too many trust their government despite clear evidence of corruption and abuse. Far too many people ask the government for a handout instead of asking for sane regulations that benefit free market and punishes corporate greed and abuse.

Far too many cheer on the very organizations and people that have caused this distress even when it has been paid with nothing but the most paltry of lip service and sanctimonious tripe.

Ninja (profile) says:

Re: Lest it be forgotten

This cannot be emphasized enough. I’d go as far as say they would have made a pact with the Devil if this could make TPP pass. I mean, slavery. Slavery was overlooked to get this through. This says a lot about the rotten garbage that was behind the negotiations. And the utter pile of crap that this agreement is.

Speaking of it, I propose we stop calling it an agreement because an agreement is not shoved down the throats of one of the main affected parties (the public). Given it will mess with medicine and put many people out of reach from treatments I propose calling it “slavery induced mass murder mechanism”.

Shill says:

“Now imagine what would happen if anyone tried to… say… shorten copyright terms?”

GASPS!!! HOW DARE THEY!!! The corporations spent good money buying politicians to get copy protection terms retroactively extended beyond any reasonable measure. They put a lot of effort negotiating these agreements in secrecy and trying to keep the documents as secret as possible until the last minute so that the public has no say in the matter. For someone to even suggest undoing all that hard work, time, and money spent to undue our fantastic accomplishments of corruption is an unspeakable sin!!! Don’t even think it!!!!

That One Guy (profile) says:

Re: That's a feature, not a bug.

They don’t want debate regarding it or anything within it. Debate would allow those that haven’t been bought or conned into supporting it to spot the really nasty bits(as opposed to the regularly nasty bits), and the last thing the ones who bought the thing want is for any light to be shined on what’s in it.

Doug says:

Extra-governmental corporations

It seems the push these days is to transform corporations — which used to have to work within a country’s governmental apparatus — into extra-governmental entities that instead of adhering to a country’s laws instead dictate those laws to them.

I do not want to live in the sovereign state of Big Business!

Anonymous Anonymous Coward says:

Re: Re: Extra-governmental corporations

I was just reading some of the comments in the bitcoin thread and I thought of your comment. Would it be possible to take down some of our new overlords by simply (actually probably not so simple) destroying the value of their stock? Zero or little market value, lawyers and arbiters cannot get paid, no vendors to supply so product isn’t made so revenue goes in the toilet and the company folds.

Then again, they (meaning we) bailed out Chrysler and the banks and who knows how many others because they can just keep those presses printing money and if they get too far behind just increase the denominations of the notes they print.

The problems appear when the ephemeral notion of money backed by a promise and nothing else fails to satisfy…someone. The total collapse of the world’s economy and all currencies is gonna be messy and extremely painful, though I suspect it will be more painful for the haves than the have nots because the have nots will be used to the new position.

Did I just argue that having less will be more in the long run?

Anonymous Coward says:

Even if the TPP passes, individual artists can just waive any protections and really stupid clauses it guarantees for stuff they 100% made. I didn’t sign the TPP, for instance, so while I may have to follow it for third party material, no-one can ensure I do so for personal projects. One could theoretically also make business partners sign deals in such a way that makes TPP-introduced clauses completely useless for those deals.

But even so, it all comes back to this whole thing being nightmarishly horrendous and parasitic- possibly even evil.

Anonymous Coward says:

Obama's dancin' with the ones that brought him...

This is payback time for supporting his elections.

Obama now has to worry about becoming the first billionaire ex-president, so that he can support Michelle’s and Malia’s White House runs.

BTW, *Michelle* is the Obama’s “backup” plan to Hillary; Obama’s already said that he could get elected to a 3rd term.

You heard it here first.

Anonymous Coward says:

Even if the text of the TPP were not so odious, why would any country even consider it? The TPP handcuffs everyone. It takes away the right of elected governments to pass legislation, as well as the right of the people to a fair trial in court, as the TPP overrules all of these things, and more.

Perhaps one of the worst aspects of these so-called “trade” agreements is that they will lead to more and more, until eventually the entire world is ruled, in every aspect, by this secret society of global corporations that answers to no one.

Charles (profile) says:

Growing inequality

How profitable is a great movie when most can not afford to buy a theater ticket? How much is a wonder drug worth if many, many are poor and not insured? All producers need consumers- productive consumers with disposable income. The rich can not be the only buyers and all businesses need a viable market.

All the gold on earth is useless to the last one standing.

That One Guy (profile) says:

Re: Re: Re:

Nice selective memory you’ve got there. The blackout was hardly a ‘Google only’ event, numerous sites participated, which was a large part of why it was so effective. However, even if Google was the only participant, another blackout would hardly be ‘ransoming the internet’ unless you’re one of those people who think Google is the internet, and in which case have fun with that obsession of yours.

Also love the lie, this has nothing to do with enforcing IP law, and everything to do with ratcheting it up, again, and ensuring that it can never be decreased, lest those attempting to do so run afoul of the ‘international obligations’, if they’re not flat out sued in corporate sovereignty ‘court’ for ‘damage to IP assets’.

That One Guy (profile) says:

Re: Re: Re:3 Re:

[CITATION NEEDED]

You don’t get to just dismiss the evidence of what actually happened by pretending it was all some convoluted plot by some shadowy figure from behind. Just because you seem to think Google runs the internet, and is the only company or group that could possible have an opinion on something, doesn’t mean the rest of us have to humor you.

Also, your own paranoid argument works against you. If Google really had the most to lose, then they would have been the first to step forward and oppose it, loudly and without hesitation. They didn’t, and in fact only got on board with the protests later on, after having been one of the supporters of an alternate bill that included some of the same stuff in SOPA/PIPA.

Uriel-238 (profile) says:

Re: Re: What's about to happen with the TPP is pretty much that...

Essentially corporations will be able to sue nations to censor or block parts of the internet, holding hosts as aiding and abetting for alleged crimes. It doesn’t even have to be a real crime if it’s costing a company profits.

That sounds like they’re nationalizing the whole internet anyway if TPP passes.

Anonymous Coward says:

Here’s a sad but funny observation. A sample of discussion activity at the Guardian:

Ben Carson campaign admits candidate did not seek admission to West Point – 500+ comments

Religious children are meaner than their secular counterparts, study finds – 2500+ comments

The clock is ticking on a time bomb that could blow up a free internet: the TPP – 63 comments

That One Guy (profile) says:

Re: Re:

Unfortunate, but not surprising.

Trade(or in this case ‘trade’) agreements are boring and dry and require you to dig in to understand what’s going on, short term and long. The other stuff is easy to understand, and requires minimal effort to do so.

Tell someone that something notable and simple happened five minutes ago and you’ll get their attention. Tell that same person that something even bigger, but much more complex will happen months down the road, and their attention is going to be much less focused, because it’s not happening now, and it’s not nearly as easy to grasp.

Anonymous Coward says:

Re: Re: Re:

On the up side, there’s usually more activity with TTIP articles and people do seem to distrust it. On the down side, they only distrust it because they think it’s just a plot by Google and US billionaires to take over the EU and destroy their egalitarian, ethical, rights-respecting corporations.

On the orthogonal side, they also think that arresting people for saying mean things is a cornerstone of free speech… I’d stop reading the Guardian if it weren’t for the fact that they do a better job tracking abuses committed by American police than anyone here in the US (Balko’s WP column excepted).

sam1am says:

An open internet where information can’t be controlled is a threat to the people who benefit from controlling information. Copyright is the method by which they can tighten their grip and they will try again and again through new laws, regulations, policies, fast lanes, and now trade deals until they are able to put it under some control. The people will have to fight it each and every time and eventually we’ll get tired of it and they will win.

GEMont (profile) says:

The cycle of life on earth.

Well wuttya know!

The world just got royally raped and the authorities say its our fault.

Never cooda seen that one coming eh. 🙂

Fascism is kinda like the flu. At first, it just makes you sorta sleepy, and then before you know it, you want to die.

Simplest reality: if we let them get away with this bit of chicanery, we are all forever fucked, and there aint no going forward after that, until after it all falls apart.

The Merchant will be King once again, and the world will once more become a commodity, traded back and forth by the Billionaires until once again, it all comes apart – just the ruins of one more human civilization crumbling back into dust, among all of those before it.

And it will indeed be our fault. It always is. It will apparently, always be so.

Because we prefer the pretty lie to the ugly truth.

Sinan Unur (profile) says:

TPP in a single PDF

If you use WaPo’s interface, you are giving them all your searches for analytics, and you are limited by the capabilities of their interface.

I wrote a quick Perl script to download and assemble all the PDFs on the US Trade Representative’s page at

https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text.

You can then use your PDF reader’s search function.

FairUser (user link) says:

TPP-copyright rules are coming, meaning that provably fair use is coming at the same time.

This combination of Article 18.68: Technological Protection Measures (TPMs) and Article 18.69: Rights Management Information (RMI) is designed to act as ReEncryption-DRM that leads TPP-12 Nations to ReEncryption-Economics and its Practice Model which achieves an appropriate balance in copyright system, meaning that consumers are allowed to re-encrypt and re-transmit copyrighted material via Internet by the walled-garden sharing key built in to consumer’s device such as Ultraviolet, and/or by the key supplied remotely from cloud key center that provides with export mechanism going forward to oppose primary users and/or 2ndary users being granted broader rights to circumvent DRM.
In short, the securer DRM makes it for rightsholders to protect copyrights, the easier DRM makes it for consumers to prove fair use due to ReEncryption-DRM with export mechanism.
Hence, provably fair use is coming soon.

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