What We Learn (and Don’t Learn) from the TPP Transparency Fact Sheet

The debate over transparency in the Trans-Pacific Partnership (TPP) rages on. Yesterday the US Trade Representative (USTR) released a fact sheet on transparency in the TPP negotiations. The fact sheet basically summarizes how the USTR perceives its transparency efforts to date and how it responds to outcry from members of Congress and the public that the level of secrecy surrounding the TPP negotiations is unacceptable.

While this fact sheet is better than no response at all, it does little to address substantive concerns about secrecy in TPP and in fact only shows how public input and accountability is directly dependent on the open availability of substantive information about the TPP’s proposed text.

In this fact sheet, the USTR’s own description of the negotiation process reveals that the public only gets to see the text of the TPP after it’s already been finished and negotiations are closed. Before then, only ITACs get to officially give meaningful, text-based input to the USTR.

The fact sheet also shows how access to the text of the TPP is a prerequisite for public participation and input. The fact sheet trumpets the number of stakeholders that have participated in the US-based negotiation rounds. A closer examination of the USTR’s stakeholder chart reveals that public participation in the TPP process increased tenfold immediately after the US, New Zealand, and Chile proposals for the intellectual property chapter were leaked in early 2011, in addition to the leak of a list of goals for the TPP from the US Chamber of Commerce, PhRMA, and the MPAA (see PK’s TPP timeline here).

In contrast to how the public is treated, the fact sheet gives us a glimpse into the USTR’s interactions with companies that are members of the Industry Trade Advisory Committees (ITACs) that receive special access to the text and are able to influence negotiations. The USTR notes that it has had more than 147 meetings with the ITACs on TPP, and has given them 110 TPP documents in the past two years via a website (that’s about one new document per week).

How does the USTR try to justify giving such extensive access to industry insiders while keeping the public out? The USTR simply says that international trade agreements often touch on “complex and commercially sensitive sectors and issues,” and negotiating parties are more forthcoming when they can keep their proposals secret.

But it’s hard to believe that the executive branch can’t make open proposals that affect complex, commercially sensitive issues, when our own Congress does it all the time. The fact that the public can see which members of Congress support or sponsor a particular bill has not stopped Congress from proposing laws, nor from speaking openly and honestly about bills or amendments.

And speaking of Congress, the USTR fact sheet says that it has worked extensively with Congress, but several Senators (update: and over 130 members of Congressstrongly disagree. As TechDirt noted after a recent Senate hearing, the USTR’s consultations with Congress do not include actually giving congressional staffers access to the text, and even members of Congress must travel across town to only view the text that hundreds of industry advisors can pull up with the click of a button.

The USTR’s fact sheet is helpful for taking stock of the current state of transparency in the TPP negotiations, but unfortunately it only reveals how much secrecy remains before the public and its representatives can have meaningful, fully-informed input into this enormous trade agreement. Regardless of the continued struggle for transparency, Public Knowledge will be traveling to TPP negotiations in San Diego next week to advocate for balanced copyright provisions and urge the negotiating countries to reject provisions that will favor incumbent businesses at the expensive of consumers and innovative competitors. We will keep you updated as the negotiations progress.

This post was authored by Public Knowledge Staff Attorney Jodie Griffin.

Les Nouvelles de Bruxelles: The Changing Politics of the Knowledge Economy

The following is a guest post by Burcu Kilic, Legal Counsel to Public Citizen’s Global Access to Medicines Program, originally posted at CitizenVox.

The politics of the global knowledge economy are shifting: from mercantilism to co-operation, from closed commercial regimes toward open source. Last week, the European Parliament Committee on International Trade (INTA) passed a report recommending the rejection of the controversial Anti-Counterfeiting Trade Agreement (ACTA). Since the European Union (EU) and its 22 member states signed ACTA in January 2012, ACTA has caused nothing but consternation in Europe. Citizens of Poland, Bulgaria and the Germany took to the streets to show their opposition. These protests initiated a pan-European movement awakening the spirit of 1968. Young Europeans asked policy makers and politicians in Brussels to respect their rights, privacy and freedom on the Internet.

The ‘old continent’ woke up to what people in the global South have known and fought for over many years. Intellectual property (IP) is not merely a commercial or trade-related issue or something we can allow to be monopolized by corporations. It’s about us. It touches human life. IP rules can dictate how we access, disseminate and share knowledge, technology and information. They are not only about corporations and their interests. They are also about our internet freedom, privacy, scientific research, textbooks and journals, traditional and cultural knowledge, stewardship of biodiversity, arts and literature. The current orthodox IP standards, largely imposed by corporations, create exclusive controls over knowledge and information and have proved to be inadequate and frequently inappropriate in today’s knowledge-based economy.

What ACTA did – albeit inadvertently – was provide an impetus for a new vision of prioritizing people’s rights over IP fundamentalism in the 21st century. In recent decades, there has been a rush to over-regulate this relatively new and rather conceptually confusing form of property. The IP maximalist perspectives create modern juridical bureaucracies; monstrous, absurd legal procedures and protocols. From the perspective of people, the over-aggressive rules pushed through agreements like ACTA and the Trans-Pacific Partnership (TPP) are understood as a declaration of war threatening personal rights and freedoms on the Internet and in our daily lives. This is why the people of Europe raised their voice to warn policy makers in Brussels about the inadequacy of the current IP maximalist model, which places IP monopolies at its heart instead of sharing or disseminating knowledge, technology or information.

The ‘war against piracy’ turned into a revolution against the corporate internet. Brussels could not stay indifferent to the outcry. First, the Committee on Legal Affairs (Juri), Committee on Civil Liberties (LIBE) and the Committee on Industry, Research and Energy (ITRE) voted to express “opinions against ACTA”. If three strikes weren’t enough, a vote in the Development Committee gave a fourth. Finally, on June 21 the trade committee (INTA) dealt a serious blow to ACTA. The INTA vote shows that European politicians increasingly understand we, the people, will not let healthcare and internet policy be dictated by a very few outdated corporate interests. Rather, we need forward-looking, flexible policies for technology, knowledge and creative works that unleash our human genius. ACTA is a retrograde policing approach to the knowledge economy: it promotes IP fundamentalism, it treats competition like criminality and the internet as a threat.

We cannot count ACTA out yet. The final voting in the European Parliament will be held on the 4th of July. The Fourth of July is an important day for Americans, which honors the birthday of the United States of America and the adoption of the Declaration of Independence. But it seems that it would also be a memorable day for the Europeans, honoring the sense of European citizenship in today’s knowledge economy based on the values of individual freedom, equality, tolerance, privacy and democracy .

Thanks to Peter Maybarduk for his contributions to this post.

Credit Where Credit Is Due: USTR Accommodates Stakeholder Presentations

The US Trade Representative (USTR) just recently announced that it will accommodate both formal presentations and less structured events for stakeholders in the next round of Trans-Pacific Partnership (TPP) negotiations. This is a promising step forward for the USTR’s public engagement efforts, even though it cannot solve the serious problems caused by the lack of transparency in the TPP negotiations.

Combining the Best of Both Worlds

The next round of TPP negotiaitons are less than a month from now, and the USTR has begun releasinginformation for stakeholders to engage with negotiators. The USTR plans to host another stakeholder event, a la TPP Dallas, in which stakeholders can register for a table and speak directly with the negotiators who attend the event.

As we explained after attending a similar event in Dallas last month, there are advantages and disadvantages to stakeholder tables events and more formal stakeholder presentation forums. Which format works better for a particular stakeholder will depend on their resources, their familiarity with the negotiators, and the substance of their concerns about the TPP.

In Public Knowledge’s feedback about the event, we suggested that the hosting country should hold both a formal presentation forum and a less structured tabling event, to better accommodated the various needs of different stakeholders. And now it seems the USTR is planning to do just that during the San Diego negotiations.

The USTR’s stakeholder engagement website includes instructions both for registering for a stakeholder tables event and for making arrangements to make more formal presentations to negotiators. It’s encouraging to see the USTR respond to stakeholder feedback so quickly and become more open to accommodating the needs of a variety of stakeholders.

The Elephant in the Room: Transparency

Of course, it must be said that all of the stakeholder engagement events in the world cannot make up for the shocking lack of transparency surrounding the substance of the negotiations and the TPP’s text. Stakeholder events also cannot truly be effective if the negotiators are obviously not interested in hearing from public interest groups.

Transparency is a two-way street, and increasing the amount of information flowing from stakeholders to the government does not lessen the government’s obligation to provide information about its activities and proposals to the public.

That said, the USTR’s efforts to help stakeholders engage with negotiators and make their case before the negotiating countries is promising. Public Knowledge will continue to use every available opportunity to advocate for balanced copyright provisions in the TPP that will benefits consumers and innovative new companies.

This post was written by Public Knowledge Staff Attorney Jodie Griffin.

USTR Gone Rogue

In previous blog posts, Public Knowledge generally described the stakeholder events that occurred this past weekend at the TPP negotiations in Dallas, to give readers a sense of the structure that public interest groups work within during negotiations. This post will be dedicated to the actual substance of the conversations we had with the USTR during those events.

Stakeholder Engagement: A Huge Disappointment

While we thought the general structure of the stakeholder tabling event has its advantages and disadvantages, the substance of the conversations we had with USTR representatives during that event made us seriously concerned that the USTR cannot be prevailed upon to represent the public without complete transparency.

Although the stakeholder tabling event was billed as an opportunity for negotiators to engage stakeholders, the negotiators that attended were, not surprisingly, unwilling to reveal any information about their substantive positions or the progress of negotiations. Conversations about the substance of the TPP only went one way: stakeholders could express their views to negotiators, but negotiators never made any responses that went beyond thanking the stakeholder and promising to think about the issue further.

The USTR justifies this one-way pattern of communication—and the USTR’s opposition to transparency in general—by asserting that, as public servants, they can be trusted to listen to and act on all public input without any sort of public accountability.

But based on Public Knowledge’s conversations with USTR representatives on Saturday, we simply cannot continue to trust that the USTR is actually listening to public input.

For example, when one USTR staffer told Public Knowledge that public interest groups do not need to see draft texts or negotiating positions, I responded that Public Knowledge uses that information to analyze particular provisions and evaluate their impact on the public. The USTR’s response: That’s not your job! That’s his job!” (Pointing to the US intellectual property negotiator next to him.)

The IP negotiator tried to run damage control by praising Public Knowledge’s work and noting how useful our comparison of the TPP and US law is. A comparison, by the way, that Public Knowledge could never have written had the draft text never been leaked in February 2011. More fundamentally, how can we be expected to believe that the public’s input and analyses are actually being considered by the government and represented in US proposals when our government representatives specifically tell us they don’t care what we think?

If the USTR takes the position that the public has no business analyzing how TPP proposals will impact the public, it follows that they think the Saturday stakeholder was absolutely meaningless. Maybe it was just designed to make us feel like our voices were heard—an empty gesture to get the public off of their backs. The structure of Saturday’s stakeholder event can only work if the negotiators are actually giving meaningful consideration to stakeholders’ input.

Remedy: Transparency. Now.

The USTR’s apparent contempt for public interest groups is obviously very disappointing, particularly since it goes against the Obama administration’s entire philosophy to increase transparency in government. The President has specifically directed executive agencies (including the USTR) to become more transparent and to help the public “participate in policymaking.”

The views we heard from the USTR staff on Saturday are the exact opposite of what the President has ordered executive agencies to do. The USTR has gone rogue. Why is the White House letting one of its agencies blatantly flout its policies when it’s negotiating one of the largest, most important trade agreements the nation has ever seen?

The only way to fix this mess is for the USTR to become completely transparent. Now that the USTR has made it clear that they think public interest groups have no place speaking out about the public’s interest in the TPP, we must stop trusting that the USTR is giving appropriate consideration to our arguments. We need proof, and that proof has to come in the form of revealing what the USTR is actually proposing to the other TPP countries.

After all, how can the public be expected to trust that the USTR is representing their perspective when the USTR makes perfectly clear that they are not interested in learning about the public’s perspective?

You can act now to tell the President to make the TPP transparent and open to public participation. For more information about the substance of the TPP, visit www.tppinfo.org.

This post was written by Public Knowledge Staff Attorney Jodie Griffin.

TPP and a Very Basic Point About Transparency

If you’ve been following this space, you’ve likely seen that Public Knowledge was on the ground in Dallas this past weekend, covering the latest round of negotiations on the Trans-Pacific Partnership Agreement, or TPP. Among the various problems with the agreement itself (possible increases to already-draconian copyright penalties internationally, increased emphasis on protecting DRM, a lack of inclusion of well-established limitations and exceptions like library uses and fair use), there’s the fact that the agreement itself remains a closely guarded secret. The public is apparently not allowed to see even the opening positions their governments are making in negotiations. As you’ve seen from Jodie’s reports, the public and public interest groups are excluded not just from the room in which the future of international IP laws are being decided, but even from what representatives of their governments are asking the rest of the world to do.

This has been one of the most universal causes of complaint about the TPP. Last week, over 30 legal academics from various countries sent a letter to Ron Kirk, the U.S. Trade Representative, noting the lack of transparency in the negotiations for the TPP. Unusually, the response from USTR and Ambassador Kirk was swift: the next day, Kirk sent this message, reprinted below:

 I look forward to reviewing your letter, and will provide a more detailed response later. In the interim, you may be surprised to know that USTR has conducted the most, active outreach to all stakeholders relative to the TPP than in any FTA previously, including, the proposed disciplines on intellectual property.

I do not quarrel with any assertions that our work may not reflect the exact wishes of your colleagues, but, I am strongly offended by the assertion that our process has been non-transparent and lacked public participation. USTR has conducted in excess of 400 consultations with Congressional and private stakeholders on the TPP, including inviting stakeholders to all of the twelve negotiating rounds.

I trust that after you have received my more formal response you will make every effort to educate your colleagues as to the extraordinary efforts our staff has engaged in relative to drafting our proposed texts for the TPP.

As many have pointed out, saying the TPP is “more transparent than any FTA previously” is cherry-picking from a smaller set of international negotiations. The fact of the matter is that the TPP is slated to do far more than just negotiate trade positions, but to set standards for legal obligations of the signing countries. It’s also striking that Kirk would be “offended” by accusations of a lack of transparency. However many stakeholder consultations they have, or however many opinions they solicit doesn’t actually change the transparency of the agreement.

This is a key point that needs to be made about transparency—it’s not about whether or not the government has the relevant opinions of the public. Transparency is about the flow of information the other way—information about the workings of government being visible to the people it is supposed to represent. That is precisely what is lacking in this process. This should be an obvious point, but it’s one that Kirk’s response either fundamentally misunderstands or deliberately sidesteps. So long as no actual proposed text comes to light (you know, the way draft laws and international treaties are published), the process remains opaque, and no amount of input from whatever stakeholders into the TPP process makes up for a lack of real information flowing the other way.

This post was written by Public Knowledge Deputy Legal Director Sherwin Siy.

TPP Deep Dive: The TPP’s Myopic Focus on Enforcement Will Cause Collateral Damage

This is the third in the series of our deep dive blog posts talking about concerns with specific aspects of the TPP. In this one, I will talk about the copyright enforcement provisions of the TPP and why they are not in the best interests of Americans or citizens of the other TPP countries.

Like most of our other our substantive analyses, this one is based on the US proposed draft text thatleaked in February last year.

The US proposed text reveals that the TPP’s enforcement chapter is based on the flawed assumption that more draconian enforcement measures will lead to lower levels of piracy. This proposition is undermined by a recent study that the Social Science Research Council conducted. That study looked at piracy in emerging economies, like India, Brazil, and South Africa and found that piracy was much more a result of high prices of media and low cost of storage technology and much less a result of corrupted morals. Yet the moralistic approach is one that animates the TPP’s enforcement chapter. This approach results in provisions that will impose spectacular punishment far out of proportion to the nature of the infringement, ignore basic principles of fair procedure in trial, and harm the rights of innocent bystanders who might be caught in the web of enforcement.

Disproportionate punishment

The TPP requires countries to institute US style statutory damages. We have highlighted the problems with this regime before. To recap: the US statutory damages regime would impose a pre-set amount of damages per work infringed without consideration for how this amount would relate to the damage caused to the copyright owner. Because statutory damages can be as high as $150,000 per work, the possibility of exposure to statutory damages chills new and innovative uses of works by users and technology companies.

A provision that takes a similar, if a more draconian, approach appears in the criminal section of the enforcement chapter. That section requires imposition of jail terms and deterrent level fines for infringements done for “private financial gain” or done without a “direct or indirect motivation of financial gain”. Application of the section could easily send an individual who downloaded a few songs to jail.

Both the statutory damages and the criminal enforcement provision will often impose punishments that far outweigh the seriousness of the crime. On a practical level, its application will likely face resistance from judges, particularly judges in developing economies, who are faced with poverty and high crime and do not view small scale infringement as a criminal activity. As the SSRC study notes, because of the strain that these provisions put on enforcement resources, these measures are likely to result in selective enforcement. But it is not likely to reduce infringement levels, particularly where the incumbent IP industries insist on maintaining antiquated business models and treating their customers without respect.

Fairness in trial procedures

Many provisions of the TPP’s IP chapter assume that rights holder assertions will be true, or at least more true, than anything an accused user would have to say. This assumption results in provisions that give an unfair procedural advantage to rights owners, ignoring basic principles of fairness as well as settled principles of US law.

One such provision calls on courts to look at the value of the infringed good as they are deciding how much damages an infringer would owe the copyright owner. In doing so, it directs courts to consider, among other things, “the suggested retail price or other legitimate measure of value submitted by the rights holder.” This bias towards claims of rights holders is opposed to the fundamental principle that courts should objectively evaluate claims made by both sides to the dispute. It also reverses the principle of US law that actual damages should reflect a license fee that a willing copyright owner and willing user would have negotiated before the use began.

The collateral damage

When enforcement mechanisms expand in scope to include people and things with increasingly attenuated connection to infringement, someone who has done nothing wrong is likely to get punished. Yet, the copyright- enforcement-on-steroids approach is blind to this danger. And this blindness is reflected in some of the seizure and forfeiture provisions of the TPP.

These provisions would give judges the power to seize infringing goods, materials, and implements that are used in infringement, and “any assets traceable to the infringing activity”. They would also give judges the power to forfeit “assets traceable to infringing activity” and assets whose “value corresponds to that of assets derived from infringing activity.”

These provisions will extend to a broad swath of private property, a lot of which would only tangentially be related to infringement. For example, in a case where one person in a family downloaded some infringing material, the family’s computer could be considered an asset that aided the infringement and seized or forfeited. Similarly, in the MegaUpload case, servers that hosted content of the site’s clients were seized under powers similar to those mentioned above. Whether or not the allegations against MegaUpload are true, the seizure resulted in locking down content of non-infringing users of MegaUpoad’s servers.

To be clear, seizure and forfeiture provisions similar to, though not quite as expansive as, the TPP’s provisions are part of US law. However, this part of US law is recent and its ramifications are not completely clear. Recent developments, like the seizure of MegaUpload servers and websites like Dajaz1, give us cause to believe that these provisions are likely to cause a lot of collateral damage. Given this state of affairs, the wise course of action would be to take a step back and examine their working within the US before exporting these standards to other countries.

Yet, are the TPP negotiators going to pause and consider the consequences of their actions? From what we see the opposite seems to be the case. The negotiators are negotiating away feverishly. And the public’s ability to influence this process continues to be thwarted by the secrecy surrounding the process.

This blog post was written by Rashmi Rangnath, Director of Public Knowledge’s Global Knowledge Initiative.

Live from the Trenches Part 2: TPP Stakeholder Event

Today Public Knowledge participated in the US Trade Representative’s (USTR) stakeholder tabling event for the Trans-Pacific Partnership (TPP), where stakeholders could sign up to sit at a table in hopes that negotiators working on their issues would come by to discuss their concerns. This event differs from previous stakeholders forums, where stakeholders made formal presentations to groups of negotiators together. Public Knowledge has written before about the difference between the two types of stakeholder events.

Having now participated in both kinds of stakeholder events, we find that there are advantages and disadvantages to each. Whether one event is more effective than the other depends upon the particular stakeholder, how well they already know the negotiators, and the level of transparency in negotiations.

The stakeholder forums have the benefit of allowing stakeholders to express their concerns more completely to all of the negotiators at once. This way, all the negotiators have heard the same set of concerns. The forum is also helpful for public interest groups that are new to the negotiations and have never personally met the negotiators before to present their views.

The tabling event, which consisted of approximately 50 stakeholder tables arranged somewhat like a high school science fair, provides an easy way for stakeholders to have one-on-one conversations with negotiators, but the structure of the event left it up to the negotiators to choose which stakeholders to visit. Stakeholders that are new to the TPP negotiations will have trouble knowing who is who, and which negotiators are working on the issues of importance to them.

The Public Knowledge table at the stakeholder event.

TPP stakeholders and negotiators.

At the Public Knowledge table, we spoke with negotiators from a wide variety of countries and a wide variety of substantive trade issues. Several negotiators from the US and USTR staff stopped by to talk and get feedback on how the event was going. Disappointingly, we were not visited by a single non-US intellectual property negotiator during the entire event, and it seemed that some may not have attended the event at all.

All in all, Public Knowledge is glad we participated in the event, despite it not being quite as fruitful as we had hoped. Perhaps the answer for future negotiation rounds is to combine a more formal event with a less structured tabling event for stakeholders, with both events being hosted by the negotiating countries or the host country. That way, negotiators can listen to presentations, learn what stakeholders are in attendance, and ask follow-up questions at the tabling event.

However, while Public Knowledge appreciates the opportunity to participate in these stakeholder events, none of this is an adequate substitute for making the TPP negotiations more transparent and open to public input. Both types of stakeholders events benefit greatly from transparency, because the stakeholders can give more relevant input to the negotiations if the stakeholders have access to recent texts to at least information about areas of negotiations.

The TPP threatens consequences to the general public that are simply too great to implement without thorough public engagement at every stage of the process. Going forward, Public Knowledge will continue to advocate both for transparency and for balanced copyright in the TPP.

This post was written by Public Knowledge Staff Attorney Jodie Griffin.

Copyright and the TPP: The Big Picture

As Public Knowledge dives into the Trans-Pacific Partnership’s (TPP) secret negotiation process and the details of its copyright provisions, it is useful to periodically step back and consider how the intellectual property chapter of the TPP fits into the framework of the TPP as a whole. The copyright provisions of the TPP, as based on the text proposed by the U.S. that was leaked in February 2011, would contradict the TPP’s overall goal of creating a seamless Pacific market and would chill innovation to the detriment of both consumers and businesses.

The TPP generally is an ambitious effort to open trade and encourage investment among the countries that border the Pacific Ocean. That is why the TPP covers so many different areas of the economy, like agriculture, textiles, environmental protections, and intellectual property.

Intellectual property (IP), however, fits uneasily into the trade agreement framework. When countries negotiate an IP chapter in a trade agreement, they don’t negotiate tariffs, as in traditional trade negotiations. Instead, the countries agree to alter their domestic laws so that particular companies can enjoy stronger protections in the countries that are party to the agreement.

When it comes to copyright, the goal of the negotiation is usually not persuading each country to treat foreign persons and companies equal to domestic entities (as when countries agree to lower tariffs against each other’s goods). That goal has already been achieved through IP agreements negotiated under the World Trade Organization framework. All the TPP countries are party to that agreement and are already obliged to treat foreign IP owners on par with their domestic IP owners. Instead, the stated goal of the US, in the TPP, is to ratchet up copyright protection and enforcement in other countries.

The idea is not to achieve a level playing field: it’s to entrench and protect incumbent business models, regardless of the consequences for consumers and new businesses.

If the US’s goal is to encourage innovation and leave breathing room for innovative new businesses to experiment and thrive, it must stop demanding copyright provisions whose only practical effect is to protect existing business models and discourage anyone else from trying something new.

In the copyright space, we have seen how copyright owners can use strong copyright protection and harsh enforcement provisions to chill innovation. Particularly, incumbent distribution intermediaries, like major record labels, have used the copyrights they obtain from the actual artists to stifle the development of upstart distribution competitors. Major labels have used their copyright catalogs to thwart new digital distributors—which would actually benefit musicians by offering them more ways to reach fans—by denying them licenses to large portions of today’s most popular music, or by requiring new distributors to give the labels enormous advances or disproportionately high royalties in return for the licenses.

For example, when the digital music startup Beyond Oblivion filed for bankruptcy this past January, the company owed Sony Music Entertainment and Warn Music Group $50 million each. Note: Beyond Oblivion was forced to shut down before they even launched their service, so the company owed $100 million in advances before a single user had listened to a single song. These types of demands increase barriers to new digital distributions start-ups and discourage investors from funding new distribution companies.

But distributors have to play this game because they can see from the example of companies like Veoh that even if they are not liable for copyright infringement, the costs of litigation may put them into bankruptcy. Veoh, an internet video platform, was sued by Universal Music Group for copyright infringement in 2006. Veoh was ultimately vindicated in court and found not liable for copyright infringement, but by the time the litigation had finished the company had already been forced into bankruptcy due in part to high litigation costs.

This is just one example of how unbalanced copyright laws and unreasonable enforcement measures that fail to respect due process and basic fairness only serve to preserve and promote the power of incumbents instead of allowing new businesses to compete with existing corporate copyright owners.

If the US wants to strike a deal that creates a seamless international market that welcomes new market entrants to thrive in a global marketplace, then the US must consider all interests at stake: incumbent businesses, new businesses, and consumers. Until then, the copyright provisions of the TPP will only work against the negotiators’ goals.

As the TPP negotiations in Dallas continue, Public Knowledge will continue blogging to keep you up-to-date on this important agreement. For more information and updates visit http://www.tppinfo.org.

This blog post was written by Public Knowledge Staff Attorney Jodie Griffin.

Live from the Trenches: TPP Negotiations in Dallas

As the Trans-Pacific Partnership (TPP) negotiations continue in Dallas, as promised, Public Knowledge is on the ground advocating for the public’s interest and urging negotiators to open the TPP process and allow public participation.

Here is a quick summary of what the TPP Dallas negotiations look like from the perspective of a public interest group like Public Knowledge.

Stakeholder Registration and Events

Stakeholders (people affected by the outcome of negotiations) have no access to the space where the actual negotiations take place. The entire floor where the negotiations take place is off-limits, and if you accidentally wander into the negotiators’ part of the hotel, security will kindly but firmly turn you around and direct you back to the lobby.

The US Trade Representative (USTR) has, however, set up a system through which public interest groups can register as stakeholders. Registered stakeholders will be able to attend a reception later tonight and/or participate in the stakeholders’ tables event tomorrow in hopes that negotiators will approach them and ask about their concerns with the TPP. (Public Knowledge will be reporting back to you about that event, as well.)

PK Side Event on Copyright Enforcement

Earlier today, Public Knowledge hosted a side event for negotiators to hear from a panel of public interest copyright experts on copyright enforcement. American University’s Program on Information Justice and Intellectual Property graciously co-sponsored the event.

On the panel were: Rashmi Rangnath from Public Knowledge, Gwen Hinze from the Electronic Frontier Foundation (EFF), Susan Chalmers from InternetNZ, and Jonathan Band representing the Library Copyright Alliance.

During the event, Public Knowledge focused on the impact of harsh copyright enforcement provisions on due process and freedom of information on the internet. EFF spoke from its litigation experience to highlight how copyright enforcement provisions can impose high costs on intermediaries and sacrifice privacy and due process. InternetNZ discussed the ramifications of policies that require internet service providers to terminate internet access after three allegations of infringement. Jonathan Band from the Library Copyright Alliance highlighted the unsustainable costs of copyright litigation to libraries and the importance of limitations and exceptions to copyright for libraries.

Tomorrow: The Stakeholder Science Fair

Tomorrow the US government will host a stakeholder tabling event. In the past, the USTR hosted a forum for stakeholders to make formal presentations to negotiators, but during this round they have eliminated that forum and replaced with something resembling a high school science fair. Stakeholders can register for the event, receive a designated table, and stand at that table for several hours in hopes that negotiators will walk by and ask them questions about their concerns for the TPP.

Rumor has it that tomorrow is also the date of a rally organized by the Citizens Trade Campaign, Occupy Dallas, and many other public interest groups. The protest is scheduled for tomorrow afternoon near the location of the tabling event. While Public Knowledge is not directly involved with the rally, we will be paying close attention to how negotiators respond to the concerns of consumers, either through the tabling event or the rally.

For the rest of the weekend Public Knowledge will be on the ground here, talking to negotiators and advocating for public input in these secret negotiations. To keep up-to-date visit www.tppinfo.org.

This post was written by Public Knowledge Staff Attorney Jodie Griffin.

TPP Deep Dive: Copyright and Digital Locks

This post is the second in a series of blog posts examining Public Knowledge’s concerns with the proposed copyright provisions of the Trans-Pacific Partnership (TPP). Yesterday we discussed copyright presumptions that favor copyright owners in litigation, and today we examine the parts of the TPP that use copyright law to prohibit users from circumventing digital locks over works.

For the time being, this series is examining the US’s copyright proposals for the TPP [pdf] from February 2011, which is the most recent text that is publicly available.

Digital Locks in US Law

The US laws that address digital locks are called the “anticircumvention” provisions, so named because they prohibit the circumvention of digital locks. These provisions are found in sections 1201-1204 of Title 17 in the US federal law.

The anticircumvention provisions prohibit users from circumventing digital locks that protect copyrighted works. The provisions also prohibit trafficking or offering any goods or services designed to circumvent digital locks. So, for example, breaking the DRM on your DVDs to watch them on a device that does not read DVDs would violate the anticircumvention rules.

Users who violate these provisions can be sued in court by private parties or might even be charged in criminal court, depending on the severity of the offense and whether it was committed for commercial gain. As discussed below, every three years the Librarian of Congress can grant temporary exemptions that permit users to break digital locks on particular categories of works for particular uses.

Mirroring US Law in the TPP

The digital locks provisions of the TPP, found in Article 4.9 of the proposed text, mirror US anticircumvention law in alarming detail. The text is also significantly more restrictive than Article 11 of the World Intellectual Property Organization (WIPO) Copyright Treaty, which was the basis for the enactment of the DMCA. The WIPO Copyright Treaty merely requires that WCT members “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights.”

This is concerning because US anticircumvention law recalibrates the relationship between copyright owners and users in a manner that undermines user rights to access content. It does this by preventing lawful uses of content that is under a digitial lock. US law is also complicated—its prohibitions are set out in great detail, and the ways it interacts with US copyright law, administrative law, and agency rulemaking are complex.

When the TPP imports so many of those intricacies into an international agreement it deprives all of the TPP countries—including the US—of the ability to amend or correct the details of the law going forward. If the TPP effectively enshrines every detail of the US’s current anticircumvention law, possible future efforts to update the law in the US will face the additional political barrier of breaching an international agreement. And other countries would be forced to accept an entire regime that is ill-suited to their individual situations, without consideration for their unique governance structures, administrative processes, or economic needs.

Differences Between US Law and the TPP: Death by a Thousand Cuts

Oddly enough, despite the vast number of TPP digital locks provisions that are almost taken verbatim from US law, upon closer examination the digital locks provisions in the TPP actually do vary from US law in several ways. Each divergence is relatively small on its own, but the differences add up to a significantly more restrictive anticircumvention regime.

This means that the TPP digital locks regime imposes more restrictions on users of digital technology and more liability for the companies that serve those users. Here are a few examples:

  • Liability even without copyright infringement: The TPP requires its member countries to make circumvention an offense even if the user was circumventing for a lawful purpose—ie, even if he never actually infringed copyright. Courts in the US are still in conflict over whether US law requires infringement as part of a circumvention offense. But even if US law coincides with the TPP on this point, the TPP would erect a political barrier to any future efforts to rethink circumvention law so that it would not prohibit breaking digital locks for lawful purposes.
  • Offering or selling goods and services: US law prohibits trafficking in products or services that are “designed for the purpose of circumventing” digital locks. The TPP has a provision that is almost exactly the same as the US provision, but expands liability for products and services designed “for the purpose of enabling or facilitating . . . circumvention.” The TPP thus expands liability to  greater swath of companies that provide goods or services that someone else uses to break a digital lock, even if the good or service does not itself actually break digital locks.
  • Mandatory imprisonment: The TPP digital locks and enforcement provisions require countries to actually impose prison sentences for criminal anticircumvention violations. In contrast, in the US, criminal anticircumvention offenses are punishable by jail or fines, giving the courts more leeway to avoid prison sentences when appropriate.
  • Damages for innocent offenses: Under US law, courts have discretion to reduce damages for innocent violations of the digital locks provisions, and courts actually must reduce damages for innocent violations by libraries, archives, and educational institutions. The TPP has no such exceptions for innocent violations, and actually requires TPP countries to give their courts authority to let copyright owners choose between actual and statutory damages in all cases.
  • Higher standard for exceptions: In the US, the Library of Congress can grant temporary exemptions from the anticircumvention rules every three years for particular uses of categories of works. The statute that authorizes the Librarian to make these exemptions tells him or her to determine whether “users of a copyrighted work are, or are likely to be . . . adversely affected by [the anticircumvention rules] in their ability to make noninfringing uses[.]” The TPP contemplates a process that is extremely similar to the US process (are you noticing a pattern?), but the TPP requires that proponents of exemptions prove their case by “substantial evidence.” This somehow manages to tie the US and other countries down the current state of a fairly complicated intersection of copyright, para-copyright, and administrative law, while also going beyond the current state of the law. This also makes it that much harder for countries to permit circumvention for lawful uses.

This list is not exhaustive, but gives you a general idea of how the TPP makes many small, technical, seemingly insignificant changes that add up to a noticeably more restrictive, user-unfriendly digital locks regime.

For more information and updates about the TPP, or to tell President Obama that you think the TPP process should benefit from greater transparency and more public input, visit our website at www.tppinfo.org.

This post was written by Public Knowledge Staff Attorney Jodie Griffin.

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