Trans-Pacific Partnership Breakdown, Part 2

Part two of my breakdown of the Trans-Pacific Partnership (TPP) will look at the copyright and enforcement mechanism sections of the leaked agreement.  Let’s examine these sections in detail.

Copyright

The copyright section of the TPP looks familiar to US copyright attorneys: it greatly resembles the Digital Millennium Copyright Act (DMCA).  The draft still proposes some relatively significant tweaks to international copyright law.  First and foremost, the TPP contains two proposals for copyright terms.  The draft proposes that a copyright should last for the life of the author plus either 70 or 100 years.  The life of the author plus 70 years is the current term for a copyright under US law.  Life of the author plus 100 years would obviously represent a significant extension of these terms.  There appears to be more debate over works not tied to a single author (such as corporate works).  The proposals here include 95 years (the US proposal), 70 years (proposed by four different countries), and 75 years (proposed by Mexico), starting from the year of the first authorized publication.  If there is no authorized publication within a certain time period (25 years or 50 years, depending on the proposal), then the copyright term lasts for either 120 years (US) or 70 years.  The US proposals mirror US law (95 years from publication or 120 years from creation, whichever is shorter), while other proposals last for a shorter period of time.

The TPP also contains a section discussing circumvention of technological protection measures (TPMs).  TPMs are specialized programs or other technological tools to prevent illegal copying of a work.  Some examples of this include measures such as persistent online authentication (requiring the user to remain online to use a program, in order to verify authenticity) or activation codes.  The TPP would, like the DMCA, criminalize trying to get around TPMs (referred to as circumvention).  Like the DMCA, circumvention of a TPM represents a separate charge from the actual infringement.  The significance of this section is less its effect on the US (where the TPM section is currently the law) than on the other countries participating in the TPP.  For more detailed analysis, here’s a thorough breakdown of the TPM section by the Electronic Frontier Foundation.

Enforcement Mechanisms

The enforcement mechanisms section contains one of the most significant changes of US law in the TPP.  The DMCA provides for “safe harbor” provisions protecting certain entities.  Internet Service Providers (ISPs) and Internet Content Providers (ICPs) receive immunity from copyright infringement as long as they maintain a system for addressing copyright infringement.  In practice, this system is the notice and takedown system mentioned in previous posts.  The TPP has a few different proposals on the continued existence of safe harbors.  This section currently contains multiple proposals from different blocks of countries so that, while the main text of the draft still includes language that would maintain limited liability for ISPs in infringement cases, there’s a possibility of increasing or eliminating ISP safe harbors in the TPP.  Two of the proposals float the idea of providing incentives to ISPs for cooperating with content owners to punish infringers.   The TPP also requires signatories to implement a notice and takedown system resembling that of the DMCA’s.  The major difference is that this proposal requires ISPs to maintain such a system and send the necessary takedown notices.  The flaws of this system mirror those of the notice and takedown system used by ICPs, like Youtube.  The major one visible in the draft is the lack of an effective counter-measure for when a party sends an invalid (or even abusive) notice.  The TPP draft lays out a process for how a party could potentially send a counter-notice if the original notice was invalid or in error.  There is no method for restoring the content or addressing the potential harm done through abuse of the notice and takedown system though.  The DMCA contained a provision allowing for some recourse on the part of the alleged infringer.  There does not appear to be a similar provision in the TPP.

Conclusion

What I find most interesting (and potentially troubling) when reading the TPP draft is its resemblance to existing law or proposed laws.  For example, the enforcement mechanisms language (particularly the US proposals) strongly resemble similar provisions in the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA- the Senate equivalent to SOPA) dealing with increased ISP liability and enforcement responsibilities.  Similarly, a great deal of the copyright sections mirror the DMCA (with a few relatively significant tweaks).  Both point to the primary issue with conducting these kinds of agreements in secret: some of this provisions were rejected by the voting populace when proposed in earlier legislation, which makes the secrecy surrounding the negotiations inherently suspect.  Whether limiting ISP safe harbors, raising copyright terms, or adding new patent categories makes for good policy is a debate best suited for a public forum.  This seems especially true given the general public’s rejection of both agreements negotiated in this fashion (such as the reaction to ACTA in Europe) and rejection of numerous proposals in the draft (as demonstrated by the fate of SOPA).  An agreement like the TPP will potentially limit the US’s ability to alter its IP laws, and such agreements must have the full faith and trust of the public before becoming law.

 

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