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Some Countries Want To Fix TPP... By Making It More Like ACTA

from the TRIPS-is-for-wusses dept

Tue, May 22nd 2012 12:32am — Glyn Moody

ACTA and TPP have much in common, but the way in which they represents two aspects of the same impulse has never been shown more clearly than here, in this proposal to re-use elements of one in the other:

In an apparent effort to break the deadlock in negotiations for an intellectual property rights (IPR) chapter in the Trans-Pacific Partnership (TPP), several countries are proposing that certain provisions in a U.S. proposal be replaced with language from the Anti-Counterfeiting Trade Agreement (ACTA), according to informed sources.

Sources said that other ACTA signatories involved in the TPP – New Zealand, Australia and Singapore – want to substitute language from the agreement’s criminal offenses section with the proposed U.S. language on criminal enforcement, according to sources in Dallas.

Some of the more "moderate" participating countries have realized that TPP's criminal enforcement provisions are simply disproportionate: the ACTA and the U.S. proposal [for TPP] both would require countries to provide for criminal procedures and penalties at least in cases of "willful" counterfeiting of trademarks and copyright piracy on a "commercial scale."

However, the U.S. proposal contains a much stricter interpretation of what constitutes commercial scale because it would cover significant infringements for both the purposes of commercial advantage or private financial gain as well as acts that result in no direct or financial gain.

One source said this provision could criminally punish an individual who has committed a significant act of infringement but does not intend to gain financially from it. IPR industry sources defend this approach as capturing users of file sharing services who do not stand to gain financially by sharing a large amount of pirated content.
That last comment is noteworthy, because it shows that the copyright industries want to punish general users swapping unauthorized copies with criminal sanctions even if there is no money involved. It confirms that these treaties are not really about fighting organized crime, as they are often presented, but truly a war on online sharing itself, where the aim is to put ordinary people behind bars.

To break the deadlock on this issue, the moderate wing of the TPP club is apparently suggesting that the equivalent ACTA provisions should be re-used. It's interesting to see ACTA, which is still being fiercely fought in Europe because of its harsh and unbalanced nature, presented here as a milder option compared to TPP. If nothing else, that negotiating calculus emphasizes just how extreme TPP is.

However, it's also disturbing that ACTA, although not yet in force, is already being taken as the new baseline. Indeed, the article quoted above notes that ACTA's provisions "represent a much higher standard than the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)" - the previous benchmark here.

Moreover, as regards the current "compromise" idea of using ACTA's provisions instead of the US proposals for TPP, an industry source had the following to say:

the U.S. IPR text largely reflects the U.S.-Korea FTA [Free Trade Agreement] and it would be unlikely the U.S. would agree to provisions that are less strict in the area of criminal enforcement.

As far as the US is concerned, it seems, every treaty in this area, whether bilateral (as in the US-Korea FTA) or multilateral (as with ACTA and TPP), is part of a policy ratchet that allows change in only one direction: more. The unspoken assumption that more copyright and more enforcement are always better is one of the key reasons why SOPA failed, ACTA is meeting such resistance, and even TPP is stumbling.

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Filed Under: acta, australia, fta, new zealand, singapore, tpp

28 Comments

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Anonymous Coward, 22 May 2012 @ 1:18am

any proposed 'law/agreement' that has to be discussed and the contents then shared only with the particular members of governments, industries and/or companies that will benefit from it, whilst at the same time excluding from the discussions those that will be adversely affected by it, cant be any good, cant be fixed and should be thrown out. certain people in governments keep pushing to get these types of law introduced simply because of the 'incentives' they have received. they have totally betrayed the people they represent and should themselves be replaced as soon as possible. they are a disgrace!!
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Anonymous Coward, 22 May 2012 @ 1:41am

Why should the text be defined by what the U.S. agrees to? Isn't it meant to be based on what all parties involved end up compromising for, rather than what one party forces on the others?
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Anonymous Coward, 22 May 2012 @ 2:56am

Taxation without representation
Don't forget that enforcing criminal law becomes an extra burden on the taxpayer.

But apparently only IP enforcement is a sacred cow for the small government folks.

Copyright must be scaled back to a purely civil matter, and if the rights holders now claim that copyright law without bells and whistles is a dead letter, just abolish it.
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Anonymous Coward, 22 May 2012 @ 3:06am

it seems that the only country that will benefit from this is the USA, simply because of having Hollywood as a movie industry. no other country is going to benefit from the USA being better off and how on earth can criminalizing just about every person on the planet and wanting to imprison them, benefit any country? at the rate the entertainment industries are going, there will be 100 times more in prison than not!
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Anonymous Coward, 22 May 2012 @ 3:45am

if it is a crime for one, it is a crime for all, no reason to exclude the free swapper, he/she/it is also a problem too, they benefit from it, doesn't have to be money involved
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Anonymous Coward, 22 May 2012 @ 3:50am

It confirms that these treaties are not really about fighting organized crime, as they are often presented, but truly a war on online sharing itself, where the aim is to put ordinary people behind bars.

Government profits when they have a lever of social control and when there is a transaction of money.

These laws are about both. Removing the law so there is one less stick to be beaten with isn't going to happen.

But one can decide to not participate - don't consume the media products of the MPAA/RIAA. Don't pay for 'em, don't download them for no payment - just don't consume them.

By not watching The Avengers you'll have more time to read and post to Techdirt, and that's a good thing - right?
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Anonymous Coward, 22 May 2012 @ 4:19am

Re:
Nonsense argument, if there is no legally sensible and categorical distinction between commercial and non-commercial activity, the state must have the power to punish any non-commercial activity incident to regulating commercial activity.

So if the state imposes criminal punishment for commercial bootlegging, it according to your logic is perfectly reasonable to impose criminal sanction for non-commercial copying even among family and friends.

Well and good, but taxpayers have no obligation to fund criminalization of the most intimate private conduct unless you can convince them that consistent criminalization of non-commercial as well as commercial transactions is in their best interest.

How much will it cost if the law is consistently enforced against all discoverable non-commercial infringement?

If you are going to argue that it's no problem because the law is not to be enforced, there is no legitimate reason for having a criminal prohibition which is rarely enforced.

So either start enforcing the law as written and defend the costs, or admit that it is never going to be enforced.

You can't have it both ways.
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abc gum, 22 May 2012 @ 4:32am

Re:
"any proposed 'law/agreement' that has to be discussed and the contents then shared only with the particular members of governments, industries and/or companies that will benefit from it, whilst at the same time excluding from the discussions those that will be adversely affected by it, cant be any good, cant be fixed and should be thrown out."

I find it amazing that these people think they can get away with this. It even gets somewhat humorous when these autocrats get upset about the public outcry, but they keep digging that hole.
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abc gum, 22 May 2012 @ 4:40am

Re:
"proposed 'law/agreement' that has to be discussed and the contents then shared only with the particular members of governments, industries and/or companies that will benefit from it, whilst at the same time excluding from the discussions those that will be adversely affected by it"

Isn't this exactly what happens when one side wins a war?
And then after all the details have been worked out in secret by the victors, the losers are forced to agree to the terms. And then to add insult to injury ... they claim to be the victims of class warfare. The audacity is astounding.
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Anonymous Coward, 22 May 2012 @ 4:43am

is this a sneaky move or what? try to get passed into law a bill that everyone with any sense is totally against. when that fails, try to introduce a new bill that is even worse than the previous one and when the complaints start, take out those bad bits and replace them with parts that were in the already rejected proposal. the result is what was wanted in the first place with the door open ready for the even worse options to come in later. regardless of what anyone says, i still do not understand how copyright infringement/file sharing between friends or for personal use can be classed as a criminal offense and now come with life imprisonment as a sentence. what the hell are governments thinking? how can exchanging pieces of data be on par with murder for Christ's sake? what is making the entertainment industries the most important thing in the world, considering what else is going on? i thought having ISPs ban websites in Greece was bad enough. i was obviously wrong. this has far outreached that ridiculous ruling!!!
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abc gum, 22 May 2012 @ 4:46am

Re: Re:
"criminalization of the most intimate private conduct "

This is their goal, copyright is simply their excuse.
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Anonymous Coward, 22 May 2012 @ 4:59am

Re: Re:
IP enforcement is bluff. If the law was ever enforced as written, there would be blood in the streets.

The only reason why IP law survives is that the government does not bother the average citizen.

The worst that can happen for copyright maximalism is the government actually enforcing the law as written.

If one million violate copyright law by forwarding email, copying cds or something else, and the government promises an enforcement rate at 1, 2 or 5 percent, supporting copyright becomes political suicide.
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Anonymous Coward, 22 May 2012 @ 6:27am

Re:
So perhaps we should have drug users consulted on drug law revisions?
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Anonymous Coward, 22 May 2012 @ 8:15am

Re: Re:
If drug users are voting citizens then yes.

Even assuming that copyright infringement is wrong, the citizen by virtue of being a taxpayer is a stakeholder in how and where the law should operate.

The taxpayer has no inherent moral obligation to support or accept copyright enforcement as a tax subsidized activity.
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varagix, 22 May 2012 @ 8:46am

Re:
The US has 'for-profit prisons'. Privately owned prisons that make money off of it's prison population. And they have lobbyists too.

That's right, we, America, have people advocating for more laws that put more people in jail, just so the jails can make more money...
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John Fenderson (profile), 22 May 2012 @ 9:19am

Re: Re:
Everyone who is affected by drug law revisions should be consulted. It's not just drug users who are impacted.

Same with copyright. The laws affect everyone, sometimes severely, whether or not they even look at or listen to copyrighted materials, legally or otherwise.
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Watchit (profile), 22 May 2012 @ 9:21am

So instead of actual fixing the language of the bill that we honestly don't know to much about beyond hearsay, they want to replace it with language that has already failed and met huge resistance throughout Europe. Are they trying to get the TPP killed or what?
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JackOfShadows (profile), 22 May 2012 @ 9:27am

Where you gonna put 'em?
That last comment is noteworthy, because it shows that the copyright industries want to punish general users swapping unauthorized copies with criminal sanctions even if there is no money involved. It confirms that these treaties are not really about fighting organized crime, as they are often presented, but truly a war on online sharing itself, where the aim is to put ordinary people behind bars.

Especially noteworthy is that the United States already has the highest level of incarceration, per capita, in the world. Also prisons, especially in California, are subject to court ordered reductions in prisoners due to overcrowding. Toss in the fact that my state, California, suffers from a severe lack of revenues. What this all adds up to is that there aren't any more beds available and there is no end in sight to this lack due to budget cuts as a result of an eroded tax base.

So what's a state to do? Why they hand their prisoners over to county and municipal jails, which are also overcrowded and unlikely to add new bed space as well, but having the singular advantage of more creative methods of punishment. The overall result is non-violent offenders are the first in line to be dumped on the counties and municipalities which similarly dump them in addition to their over-supply back out on the street often times on probation, community service and perhaps GPS monitoring, tossed into the mix. Some enforcement!

I would be lax in not pointing out that the very industry that shows a bent for creative accounting such that they pay little or no taxes are clamoring for serious criminal enforcement using money extracted for the very citizens they often wish to criminalize. My state has already had one tax revolt which triggered a round of tax revolts around the United States. Pity the (literally, by their lights) poor entertainment industry when the bill comes due on their efforts in criminalization of copyright infringement.

So I ask 'em, where you gonna put 'em?

[Criminalization without enforcement not only breeds contempt for any one particular law but for all laws. Why does the copyright mafia persist in not only annoying their customers but also show a real talent for getting the complete opposite of their goal. Witness for the jury the DDOS attacks on The Pirate Bay, among others. This takes real talent folks!]
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Anonymous Coward, 22 May 2012 @ 9:43am

Re: Where you gonna put 'em?
The war on piracy will continue as long as non-commercial file sharing stays illegal.

Only total and categorical legalization of all non-commercial copying will bring sense back to the law.

There is no middle ground between illegal or illegal non-commercial file sharing.

Either I can go to jail for copying a cd or I can't.

Many here are apparently dancing around the subject unwilling to categorically state that all non-commercial copying should be legal fullstop.
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Anonymous Coward, 22 May 2012 @ 9:46am

Re: Re: Re:
Good point. Let's have a national referendum on income taxes. All in favor of eliminating taxes say "Aye". Motion carried. Wow, that was easy.
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Anonymous Coward, 22 May 2012 @ 9:59am

Re: Re: Re: Re:
Sure, federal income tax was controversial, and repealing the federal income tax would perhaps not be a bad idea.

You know the federal government was never intended to regulate local activities from drug, firearms possession to health care or growing marihjuana in your own garden.
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Anonymous Coward, 22 May 2012 @ 10:17am

Hate to break it to the Americans reading this, but the US already contains laws in place that criminalize filesharers. I'm fairly certain that this was modeled after the NET act--which also sets a bar, at least in the US, about what constitutes "significant" willful infringement. If, during a 6-month period, you share just ONE work valued over $1,000 (an easy threshold for the IP police to claim) you could face up to five years in prison (ridiculous, I know). This is the law referenced in FBI warnings on movies.

No, what they want is for other countries to play their dirty little game. And look, they even purposely left the text of their proposal so mind-numbingly broad so that other countries can come up with even more ridiculous thresholds. Gotta catch 'em all.
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John Fenderson (profile), 22 May 2012 @ 10:18am

Re: Re: Re: Re:
All in favor of eliminating taxes say "Aye". Motion carried. Wow, that was easy.

I seriously doubt such a motion would be passed by popular vote.
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Anon - SAG, 22 May 2012 @ 1:00pm

Re: Re:
So perhaps we should have drug users consulted on drug law revisions?
Yes, just as cancer patients are consulted in their treatment options and get a say in how to move forward with their health care. Drug addiction should be a health issue, not a law enforcement issue unless other laws are broken like theft, violence, murder, etc

the way things are now, drug enforcement efforts are wasted money, time, and opportunity...
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xlayer99 (profile), 23 May 2012 @ 5:40am

Worried,very worried...

http://tinyurl.com/d4uyo2c
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Snowman, 23 May 2012 @ 7:20am

It is all about control. Who has more power?
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Peter, 23 May 2012 @ 7:33am

Re:
I was coming here to say just that and more:

http://www.laquadrature.net/en/action-required-on-crucial-acta-votes-next-week

After all the BS that might be dead or something, referral to the ECJ, reports rejecting this crap, countries saying NO, etc, and according to Christian Engstr�m and La QuadraTure Du Net, we see this s*** from the EU Parliament???
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Jonathan, 23 May 2012 @ 8:52am

Re: Re: Re: Re:
Present.

I would consider a yea vote on such a thing only because the existing regime as currently constituted is nearly irreversibly corrupt. Were it more socially acceptable to take pliers and blow torch to rich sociopaths I would vote nay, in an instant.
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