What is the Trans-Pacific Partnership Agreement (TPP)?

The Trans-Pacific Partnership (TPP) is a secretive, multi-national trade agreement that threatens to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement. The main problems are two-fold:

(1) IP chapter: Leaked draft texts of the agreement show that the IP chapter would have extensive negative ramifications for users’ freedom of speech, right to privacy and due process, and hinder peoples' abilities to innovate.

(2) Lack of transparency: The entire process has shut out multi-stakeholder participation and is shrouded in secrecy.

The twelve nations currently negotiating the TPP are the US, Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei Darussalam. The TPP contains a chapter on intellectual property covering copyright, trademarks, patents and perhaps, geographical indications. Since the draft text of the agreement has never been offically released to the public, we know from leaked documents, such as the February 2011 draft US TPP IP Rights Chapter [PDF], that US negotiators are pushing for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement (ACTA).

The TPP Will Rewrite Global Rules on Intellectual Property Enforcement

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act [DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector. The recently leaked US-proposed IP chapter also includes provisions that appear to go beyond current US law.

The leaked US IP chapter includes many detailed requirements that are more restrictive than current international standards, and would require significant changes to other countries’ copyright laws. These include obligations for countries to:

• Place Greater Liability on Internet Intermediaries: The TPP would force the adoption of the US DMCA Internet intermediaries copyright safe harbor regime in its entirety. For example, this would require Chile to rewrite its forward-looking 2010 copyright law that currently establishes a judicial notice-and-takedown regime, which
  provides greater protection to Internet users’ expression and privacy than the DMCA.

• Regulate Temporary Copies: Treat temporary reproductions of copyrighted works without copyright holders' authorization as copyright infringement. This was discussed but rejected at the intergovernmental diplomatic conference that created two key 1996 international copyright treaties, the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.

• Expand Copyright Terms: Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Life + 70 years for works created by individuals, and following the US-Oman Free Trade Agreement, either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).

• Enact a "Three-Step Test" Language That Puts Restrictions on Fair Use: The United States Trade Representative (USTR) is putting fair use at risk with restrictive language in the TPP's IP chapter. The US and Australia are both proposing very restrictive text, and Peru is willing to accommodate the bad language. 

• Escalate Protections for Digital Locks: It will also compel signatory nations to enact laws banning circumvention of digital locks (technological protection measures or TPMs) [PDF] that mirror the DMCA and treat violation of the TPM provisions as a separate offense, even when no copyright infringement is involved. This would require countries like New Zealand to completely rewrite its innovative 2008 copyright law, as well as override Australia’s carefully-crafted 2007 TPM regime exclusions for region-coding on movies on DVDs, videogames, and players, and for embedded software in devices that restrict access to goods and services for the device—a thoughtful effort by Australian policy makers to avoid the pitfalls experienced with the US digital locks provisions. In the US, business competitors have used the DMCA to try to block printer cartridge refill services, competing garage door openers, and to lock mobile phones to particular network providers.

• Ban Parallel Importation: Ban parallel importation of genuine goods acquired from other countries without the authorization of copyright owners.

• Adopt Criminal Sanctions: Adopt criminal sanctions for copyright infringement that is done without a commercial motivation, based on the provisions of the 1997 US No Electronic Theft Act.

In short, countries would have to abandon any efforts to learn from the mistakes of the US and its experience with the DMCA over the last 12 years, and adopt many of the most controversial aspects of US copyright law in their entirety. At the same time, the US IP chapter does not export the limitations and exceptions in the US copyright regime like fair use, which have enabled freedom of expression and technological innovation to flourish in the US. It includes only a placeholder for exceptions and limitations. This raises serious concerns about other countries’ sovereignty and the ability of national governments to set laws and policies to meet their domestic priorities.

Non-Transparent and On The Fast Track

Despite the broad scope and far-reaching implications of the TPP, negotiations for the agreement have taken place behind closed doors and outside of the checks and balances that operate at traditional multilateral treaty-making organizations such as the World Intellectual Property Organization and the World Trade Organization.

Like ACTA, the TPP is being negotiated rapidly with little transparency. During the TPP negotiation round in Chile in February 2011, negotiators received strong messages from prominent civil society groups demanding an end to the secrecy that has shielded TPP negotiations from the scrutiny of national lawmakers and the public. Letters addressed to government representatives in Australia, Chile, Malaysia, New Zealand and the US emphasized that both the process and effect of the proposed TPP agreement is deeply undemocratic. TPP negotiators apparently discussed the requests for greater public disclosure during the February 2011 negotiations, but took no action.

Why You Should Care

TPP raises significant concerns about citizens’ freedom of expression, due process, innovation, the future of the Internet’s global infrastructure, and the right of sovereign nations to develop policies and laws that best meet their domestic priorities. In sum, the TPP puts at risk some of the most fundamental rights that enable access to knowledge for the world’s citizens.

The USTR is pursuing a TPP agreement that will require signatory counties to adopt heightened copyright protection that advances the agenda of the US entertainment and pharmaceutical industries agendas, but omits the flexibilities and exceptions that protect Internet users and technology innovators.

The TPP will affect countries beyond the 11 that are currently involved in negotiations. Like ACTA, the TPP Agreement is a plurilateral agreement that will be used to create new heightened global IP enforcement norms. Countries that are not parties to the negotiation will likely be asked to accede to the TPP as a condition of bilateral trade agreements with the US and other TPP members, or evaluated against the TPP's copyright enforcement standards in the annual Special 301 process administered by the USTR.

Here’s what you can do:

Are you in the United States?

Join EFF and more than 30,000 people in sending a message to Congress members to demand an end to these secret backdoor negotiations:
 

 
Tell the White House to uphold openness and transparency in TPP negotiations. 

           

For close analysis of the TPP and its impacts on digital rights, visit Knowledge Ecology International's TPP resource page.

For more information on other aspects of the TPP, visit Public Citizen’s resource page.

No matter where you are in the world, you can sign on the Stop The Trap petition, which has already signed by more than 100,000 people and organizations.  

Local actions around the world

• If you’re in New Zealand, InternetNZ has created a platform for Kiwis to digitally write personalized messages on post cards. They will deliver them straight to the Minister of Trade once they reach 5,000 cards.

• Si estas en Chile, unete a la campaña promovida por la ONG Derechos Digitales y di NO al TPP!

• Si estas en Peru, contacta lo más pronto posible a los bloggeros que se oponen al TPP y a las organizaciones que reclaman transparencia!

• 日本に住んでいる方には、Stop TPP!! ウェブページでご案内できますし、Stop TPPのT−シャツを買う事もできます。日本語でのTPPアップデートはツイッターを利用して下さい。

           

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