Quick Analysis

Copyright and the Trans-Pacific Partnership Agreement

The Trans-Pacific Partnership Agreement (“TPP”) is a free trade agreement currently being negotiated by the United States, Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam. Canada, Mexico, and Japan may also join the TPP. Excessive copyright rights and enforcement adversely affect that ability of creators to create content, the ability of technology companies to make innovative products, and that ability of users to use content in new ways.

Problems with the TPP Negotiation Process

  • The TPP needs transparency. The TPP countries have not released any texts or negotiating positions to the public. The only information the public has about the contents of the TPP intellectual property chapter is from a leaked draft US proposal from February 2011.
  • The TPP needs public input. The TPP intellectual property chapter isn’t limited to provisions on trade and tariffs—it would implement substantive provisions of copyright law, which affects users, technology companies, and creators. Despite this, the US hasn’t meaningfully tried to inform or engage the public. Only large companies—not public interest advocates—are allowed to view and influence the US’s negotiating positions.

Lawmaking in US vs TPP

Building Balanced Copyright in the TPP

It’s hard to know the full extent of the harms the TPP’s copyright provisions may pose to the public interest, because the public has been kept in the dark. Based on a US draft that leaked in February 2011, Public Knowledge can identify a number of proposals that would have adverse consequences for consumers and should be removed from the TPP or modified. The actual text of the TPP may be far worse, but it is impossible to know until the text is released to the public.

  • The TPP should not protect incidental copies. The TPP would provide copyright owners power over “buffer copies”—the small copies that computers need to make in the process of moving data around. With buffer copy protection, many more transactions would require a license from the copyright owner and many more uses would expose consumers to liability.
  • The TPP should not prohibit breaking digital locks for legal uses. The TPP would prevent users from breaking digital locks (known as DRM), even if users intend to make non-infringing uses of the protected work.
  • The TPP should not criminalize small-scale copyright infringement. The TPP could make downloading music a crime. Police could seize a computer as a device that aids this offense and send the end-user to jail for downloading. The TPP’s criminal rules go beyond US law and would impose similar rules on other countries.
  • The TPP should not kick people off the internet. The TPP would encourage ISPs to institute measures like “three strikes”—which kicks users off their internet connection after three infringement accusations—and deep packet inspection.
  • The TPP should enable robust limitations and exceptions to copyright. The TPP should establish that the purpose of copyright limitations and exceptions is to achieve a balance between the rights of copyright owners and users. The TPP should define certain limitations and exceptions with sufficient detail to provide guidance to countries, and also give countries the flexibility to craft, maintain, or amend their laws to enact other socially and politically beneficial limitations and exceptions.

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