It would appear that a set of talking points that copyright maximalists have been sending around to each other concerning how to respond to the leak of the TPP draft have, themselves, been leaked
(to me, at least). As we predicted
, the focus is on "this won't change US law," but let's go through all of them to show why the talking points are misleading or ridiculous.
The Draft Is Already Outdated. The draft is dated August 30, 2013. Since that date, there have been intensive TPP negotiations, including specifically about the IP chapter, as countries have redoubled efforts to conclude the negotiations by the end of the year. The only thing that can certainly be said about this draft is that it does not reflect the current state of the negotiations.
This is true. But meaningless. After all, we've seen nothing
on this chapter since early 2011 (other than the USTR briefly mentioning plans to push for a "three step test"). So, while changes have been made, what we do
see are the negotiating positions of many of the participants -- and especially the US's extreme positions. There's a lot
that can reasonably be said about those positions beyond that "it does not reflect the current state of negotiations." If it later comes out that the US did a complete 180 in September and October, walked away from pushing insane maximalist propaganda, then we'll be happy to report on that. But it seems unlikely.
Almost Everything Is in Brackets. No one can say what the TPP IP chapter would do because almost nothing in the draft text is agreed – it is almost all in brackets, meaning not agreed. Given how inter-related the chapter is (e.g., obligations can be limited by exceptions in a separate article; specific provisions in one article may be affected by general provisions in another), it is effectively impossible to make any accurate claims about what TPP would require. So, any source making a claim about what the TPP IP chapter would do is making it up. At best, these claims are hypotheses about which of various brackets would stay and which of various brackets would go. At worst, they are calculated misinformation.
Uh, no. Yes, everything is in brackets -- meaning not yet agreed to -- but to argue this means that no one can reasonably say what the IP chapter would do if those brackets were made official
is simply ridiculous. People can read and can understand what those brackets say. And they can see that the US's position is unquestionably towards pushing maximalism.
What It Would Not Require: Changes to U.S. IP Law. While it is impossible to say right now what a TPP IP chapter would do, experience provides an answer for what it would not do -- since the U.S. began negotiating FTAs again in 2000, no FTA has required a change to U.S. intellectual property law. Unlike the claims likely to be made by the anti-TPP voices, this one is objectively provable – please see the implementing legislation for all of the modern FTAs: P.L. Nos. 108-77, 108-78, 108-286, 108-302, 109-53, 109-283, 109-169, 110-138, 112-41, 112-42, 112-43. In recent years, it has been commonly known that USTR would not accept changes to U.S. IP law through an FTA.
Kind of funny to see this point immediately
after the one that says that "any source making a claim about what the TPP IP chapter would do is making it up." Apparently that only applies to TPP changes that the copyright maximalists don't want you talking about. Either way, this was our main prediction and it's exactly
what the USTR has been saying (in fact, his statements, almost to a word, seem to repeat these talking points... which I'm sure is just a coincidence, right?). It's not true. The things that the US is pushing for within the TPP quite clearly do not
match up with existing law, though they're sneakily written in a way to pretend they do. That is, they use some of the same language and ideas, but leave out
important limitations and exceptions, which make the current law work.
But, as we stated, the much more important thing is the fact that the TPP locks in bad law
just at a time when Congress is looking to update the law. Even if it doesn't lead to a change in US law, blocking important changes to US law is just as bad, if not worse. Especially when it's done by an undemocratic, secret process driven by industry insiders rather than the public.
A Really Simple “BS Meter”: Does that Happen Under U.S. Law? Given that in FTAs this century, USTR has not signed off on an IP chapter that required changes to U.S. IP law, and those FTA IP chapters have in fact been consistent with existing U.S. IP law, there is a very simple “BS Meter” one can use to evaluate claims about TPP: “Does this happen under U.S. law now?” If the answer is “No,” then the claim is “BS.” If recent rhetoric is any indication of what is in store for TPP, get your shovels ready.
Again, the real issue isn't about how it requires changes to US law, but how it prevents necessary (and requested by the head of the Copyright Office and the President of the US) changes to US copyright law. Besides, as always, using free trade agreements to prime the ratchet has always been a part of the long game. You set it up so that you don't need to immediately
change your laws, but it does force nearly everyone else to put in place worse laws -- and then the maximalists go running around talking about how we need to "harmonize" our laws with the rest of the world.
But, again, there is proposed text in the agreement that, would, in fact require changes to US law. As a single example, Mexico has proposed extending the length of copyright yet again, this time to life plus 100 years. While that's just one proposal from one country, there are many other tidbits like that as well.
The Only Real “News” – Many Bogus Claims Are Now Verifiably False. Despite the fear-mongering over “secret” TPP negotiations, the U.S. position on intellectual property in TPP has never really been a secret – the IP chapters of the previous FTAs this century have been remarkably similar. Now that a draft of the text has been released it confirms that the U.S. is seeking IP provisions remarkably similar to those in the KORUS FTA, which received widespread support including from the tech community. The only real “news” in the leaked text is that various claims (e.g., TPP endangers Internet freedom, TPP is SOPA) are now provably false.
This one is funny. And totally bogus. The leak of the TPP text absolutely confirmed the fears of the secret negotiations. What we've seen is that the US is pushing maximalist positions strongly, leaving out the important flexibilities and counterbalances found in laws elsewhere, effectively trying to ratchet up bad intellectual property laws around the globe, while making it effectively impossible to fix the problems with our broken system. Furthermore, the lack of public involvement and public comment has made it so what the US is pushing is filled with little tricks and Easter eggs designed to benefit a few legacy players at the expense of the public and innovators.
While they mock claims like "the TPP endangers internet freedom," -- that's fairly directly provable from the leaked text. It would lock countries in to passing bad copyright laws, which would absolutely endanger internet freedom by decimating secondary liability laws, encouraging criminal prosecutions for very limited infringement, and making things like temporary copies illegal (something that is not currently the law in the US).
And that's just on the copyright side, not even touching on the patent stuff, or the corporate sovereignty "investor state dispute resolution" mechanisms that would allow companies to sue countries who don't give them the copyrights or patents they want.
Either way these talking points all clearly try to steer away from the real issue with this whole thing: a backroom deal where only corporate lobbyists had access -- which even the former USTR flat out admitted couldn't be passed if the public knew what was in it -- is clearly not an agreement designed to benefit the public. To the contrary, this agreement is entirely designed to favor a small group of special interests: companies who have long past their innovative stage, and are now looking for anti-innovative, protectionist measures. It's an economic and innovation suicide pact, designed to help big campaign contributors.