TPP May Be Worse Than ACTA

By EDRi · November 20, 2013

A version of 30 August 2013 of the Intellectual Property Rights (IPR) Chapter of the Trans-Pacific Partnership (TPP) draft confirms previously expressed concerns that the negotiating parties are prepared to expand the reach of intellectual property rights to the detriment of consumer rights and data protection. The document was recently leaked and published by Wikileaks on 13 November 2013.

The secretly negotiated TPP IPR draft which was distributed among the Chief Negotiators by the USTR after the 19th Round of Negotiations at Bandar Seri Begawan, Brunei, on 27 August 2013, includes granting more patents, creating IPR on data, extending the terms of patents and copyrights protection, expanding right holder privileges, increasing penalties for infringement, while limiting at the same time the space for exceptions in all types of intellectual property rights.

The US, as well as other countries, have defended the secrecy of the negotiations considering the government negotiators get enough advice from 700 corporate advisors cleared to see the text which actually is far from being reassuring having in mind corporate right holder lobbying pressures.

Although all of the TPP member countries are members of the WTO, which has its own extensive obligations on copyright, and the TRIPS has already expanded copyright coverage to software, providing extensive protections to performers, producers of and broadcasting organizations, the TPP contains its own detailed lists of obligations. In the TPP, the copyright provisions are meant to extend copyright terms beyond the life plus 50 years (as in Berne convention), create new exclusive rights, and provide specific instructions as to how copyright is to be managed in the digital environment.

The TPP leaked draft offers less space for exceptions than provided in the 2012 WIPO Beijing treaty, the 2013 WIPO Marrakesh treaty or the TRIPS Agreement. It also wants to stop any return to copyright systems requiring registration which has been suggested as a possibility to solve some of the issues occurring due to the copyright’s automatic nature. Lately, copyright policy makers and scholars have reconsidered the positive results of the registration of works and other formalities, especially having in view the massive orphan works problems.

Also, TPP wants strong protection for DRM. The copyright section includes a log text on technical protection measures, especially on the creation of a separate cause of action for breaking technical protection measures, which would make it illegal to circumvent DRM even if it has been applied to materials that are in the public domain. The exemptions to the restrictions on breaking technical protection measures include “lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes.”

Regarding damages for copyright infringement the draft uses the same phrasing used by ACTA: “In determining the amount of damages under paragraph 2, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.”

Yet, the TPP negotiation has been more secretive than the ACTA negotiation, and the TPP leaked text is now much worse than the ACTA text.

"If instituted, the TPP’s intellectual property regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons. If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs," said Julian Assange, the founder and editor-in-chief of WikiLeaks.

There is also some hope as the leaked text shows various areas, such as patents, medicines, copyright and digital rights, where parties have not come to terms and there is still time and room for countries to take positions in the public interest and in preserving consumer rights. So much the more now that the text is leaked to the public.

TPP IP Chapter Leaked, Confirming It’s Worse Than ACTA (13.11.2013)…

KEI analysis of Wikileaks leak of TPP IPR text, from August 30, 2013 (13.11.2013)

Secret TPP treaty: Advanced Intellectual Property chapter for all 12 nations with negotiating positions – WikiLeaks release (13.11.2013)…

WikiLeaks publishes secret draft chapter of Trans-Pacific Partnership (13.11.2013)…

TPP on Wikileaks