TPP IP Chapter Leaked, Confirming It's Worse Than ACTA
from the no-wonder-it-was-kept-secret dept
We've been waiting a long time for a major leak of the secretive TPP agreement, and thanks to Wikileaks, we now finally have it (pdf - embedded below). It's long and heavy going, not least because of all the bracketed alternatives where the negotiators haven't been able to agree on a text yet. Even though the draft is fairly recent -- it's dated 30 August, 2013 -- it contains a huge number of such open issues. Fortunately, KEI has already put together a detailed but easy-to-understand analysis, which I urge you to read in full. Here's the summary:
The document confirms fears that the negotiating parties are prepared to expand the reach of intellectual property rights, and shrink consumer rights and safeguards.
Although many areas are touched by the draft's proposals -- access to life-saving medicines would be curtailed, while the scope of patents would be extended to include surgical methods, for example -- the effects on copyright are particularly significant and troubling:
Compared to existing multilateral agreements, the TPP IPR chapter proposes the granting of more patents, the creation of intellectual property rights on data, the extension of the terms of protection for patents and copyrights, expansions of right holder privileges, and increases in the penalties for infringement. The TPP text shrinks the space for exceptions in all types of intellectual property rights. Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.Collectively, the copyright provisions [in TPP] are designed to extend copyright terms beyond the life plus 50 years found in the Berne Convention, create new exclusive rights, and provide fairly specific instructions as to how copyright is to be managed in the digital environment.
Here are some of the term extensions being proposed:
For the TPP copyright terms, the basics are as follows. The US, Australia, Peru, Singapore and Chile propose a term of life plus 70 years for natural persons. For corporate owned works, the US proposes 95 years exclusive rights, while Australia, Peru, Singapore and Chile propose 70 years for corporate owned works. Mexico wants life plus 100 years for natural persons and 75 years for corporate owned works. For unpublished works, the US wants a term of 120 years.
A more technical issue concerns the use of the "3-step test" to act as a further constraint on possible exceptions to copyright:
In its current form, the TPP space for exceptions is less robust than the space provided in the 2012 WIPO Beijing treaty or the 2013 WIPO Marrakesh treaty, and far worse than the TRIPS Agreement. While this involves complex legal issues, the policy ramifications are fairly straightforward. Should governments have a restrictive standard to judge the space available to fashion exceptions for education, quotations, public affairs, news of the day and the several other "particular" exceptions in the Berne Convention, and more generally, why would any government want to give up its general authority to consider fashioning new exceptions, or to control abuses by right holders?
That's a good example of how TPP is not just trying to change copyright in favor of the maximalists, but also to rig the entire process in favor of strengthening it in the future. Here's another one, where TPP wants to stop any return to copyright systems that require registration -- something that has been suggested as a way of solving some of the problems that arise because of copyright's automatic nature:
The TPP goes beyond the TRIPS agreement in terms of prohibiting the use of formalities for copyright. While the issue of formalities may seem like a settled issue, there is a fair amount of flexibility that will be eliminated by the TPP. At present, it is possible to have requirements for formalities for domestically owned works, and to impose formalities on many types of related rights, including those protected under the Rome Convention. In recent years, copyright policy makers and scholars have begun to reconsider the benefits of the registration of works and other formalities, particularly in light of the extended terms of copyright the massive orphan works problems.
As you would expect, TPP wants strong protection for DRM; but even here, it manages to make things worse than they are:
The copyright section also includes extensive language on technical protection measures, and in particular, the creation of a separate cause of action for breaking technical protection measures. The US wants this separate cause of action to extend even to cases where there is no copyrighted works, such as in cases of public domain materials, or data not protected by copyright.
This would make it illegal to circumvent DRM even if it has been applied to materials that are in the public domain -- effectively, enclosing them once more. Finally, it's worth noting that under the section laying down damages for copyright infringement we read the following:
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.
It's exactly the phrasing that was used in ACTA, and which turned up in the recent free trade agreement between the EU and Singapore. That encapsulates well how TPP builds on ACTA directly, while the other measures discussed above show how it goes well beyond it in many respects.
That's the bad news. The good news is that we now have a very recent draft of what is perhaps the most contentious section of the agreement. In the weeks to come, we're likely to see many detailed analyses exposing just how pernicious this proposed deal will be for the public in the negotiating countries. The hope has to be that once they find out, they will make their feelings known to their political representatives as they did with SOPA and ACTA -- and with the same final result.
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Filed Under: act, copyright, leaks, patents, secrecy, tpp, trade agreement, transparency, ustr, wikileaks
Reader Comments
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Well...
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Re: Well...
Because he's evil?
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/sarc
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I don't often speak this strongly but screw this government. They've done absolutely nothing good for this country.
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Re: Re: Re: Re: Well...
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Then, once the young upstart has been bankrupted, they buy the patent for pennies on the dollar and the legacy industries create a product that's half as good, and costs twice as much money.
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Patents should be voided if the company no longer owns them.
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Re: Re:
The only way to stop legal capture is to stop legislation and then you risk oligotropies forming and bullying competitors out of the market.
There is no easy solution.
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Actually to me it sounds like more laws to prop up a declining country that no longer innovates. Instead they 'litigate' against smaller and/or developing countries through so-called trade deals that are supposed to benefit all parties equally but in practice always seem to massively favour the US.
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Of course, you realise Americans get screwed by this too, right? America the COUNTRY doesn't get anything out of this, only the corporations do, and they are loyal only to themselves.
Hell, they don't even pay much in the way of taxes so what do we owe them?
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Proof positive that the purpose of copyright isn't to promote. Where is the incentive to publish? How can you know if you are infringing?
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Forget the next Bush, Obama's the next Mao, and the TPP is his Great Leap Forward and Cultural Revolution in one package.
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Yeah, whatever, bub.
There were both Green and Libertarian candidates on the ballot during the last presidential election in my state. And if you can't stomach Greens or Libertarians then you can even get a ballot and intentionally spoil it, or even not mark it at all before casting it.
If nothing else, you should register to vote and cast a ballot in elections 'cause that way when you call up your senator or representative, then you get to say, “Hi, I'm a voter in Mytown…” Otherwise, when you call their offices up you have to say, “Hi, I don't vote but I'm calling you up regardless…” Now, it's true, either way, I don't think they just hang up on you, but.
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Re: Re: Re: Whatever Bub, don't be naive
The only way to end the madness is for everyone to simply stop voting. It is the only way to peacefully force change at this point. The government must have a percentage of voters to validate their existence without this mandate they must change.
Stop voting now and demand change. We need a whole new form of government based on scientific evidence of efficacy. A system designed to resist corruption not embrace it.
Stop the vote! Do it now while we still can.
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Re: Re: Re: Re: Whatever Bub, don't be naive
And then things get worse.
Only way to stop this corruption is to vote and vote different people all the time.
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Re: Re: Re: Re: Re: Whatever Bub, don't be naive
Everyone who continues to vote still believes the system can continue working. The problem is it cannot because it is inherently corrupt.
Don't be a naive to the truth, Stop the Vote while you still can!
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Re: Re: Re: Re: Re: Re: Whatever Bub, don't be naive
Which would you prefer?
The ability to choose, even if choices are corrupt, or would you prefer people appointed to rule.
Cuz that's what will happen if we "Stop the Vote".
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Followed by a bloodbath and social and political repression to keep the new system in place, right?
Why don't you look up the history of revolutions and their consequences and get back to us? If you weren't so in love with violence you'd realise that silverscarcat is right.
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Re: Re: Re: Re: Re: Re: Whatever Bub, don't be naive
The Latin makes it sound official*, the meaning is fairly obvious even if you don't know Latin and it is obviously not the name of any person. The need for a vote to actually be cast is to provably demonstrate that you aren't voting for some reason other than being lazy. Currently that critique is sufficient to prevent you from rallying others to your cause.
*Sounding official is important only because the first criticism reached for should a protest oriented vote ever actually be voted by a large portion of any population will be to play off the voters as idiots. Latin verbiage stands in juxtaposition to that at the shallow level, ensuring the minimal review necessary to have a chance to capture attention.
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Re: Re: Re: Re: Re: Re: Whatever Bub, don't be naive
Instead of electing people on promises, we make the laws outside congress and elect the people who will follow that plan.
Also map the other government functions to see who is taking care of it and their history of doing so.
An please stop voting for lawyers, accountants and celebrities, vote for the office post guy maybe he can do better.
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Re: Re: Re: Re: Re: Whatever Bub, don't be naive
I think presidential is another matter, where you have to either clamp your nose and vote like they do in Italy or vote in protest. If you think Greens or Libertarians may be an improvement in the general direction, it may be a more effective protest vote. If you fear that any of those you could vote for had a chance, voting blank or write in is always a safe protest!
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Re: Re: Re: Re: Re: Re: Whatever Bub, don't be naive
1 - New people need time to get up to speed on the issues, so this could create a lot of pain for any country.
2 - It doesn't address the problem of the other part of the government the one that is responsible for collecting data and drafting solutions for problems which is owned by other interests.
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Re: Re: Re: Re: Whatever Bub, don't be naive
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Re: Re: Re: Re: Re: Whatever Bub, don't be naive
http://fubarandgrill.org/node/1172
There is very good precedent for stopping the vote to create a peaceful revolution. Now present you evidence that continuing to vote for corruption will magically fix something
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Re: Re: Re: Re: Re: Re: Whatever Bub, don't be naive
But your plan has zero chance of ever happening, and zero chance of affecting any real change, because you'll never get everyone to stop voting.
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i will not bore kampers with how even a relatively benign system of optical scanners can be scammed and hacked...
as with stalin, it doesn't matter who votes, it matters who controls the vote counting machines...
(a CLOSED, PROPRIETARY system of software/hardware... huh, i'm sure nothing could go wrong there...)
art guerrilla
aka ann archy
eof
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66 million primary school-age children attend classes hungry across the developing world, with 23 million in Africa alone.
If they are not dead - does that matter?
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And yes, Obama has turned out to be a complete schmuck. Going into the corrupt hellhole located Maryland and Virginia and trying to please everyone made him a complete sucker for the legacy industries (and any other special interest that approached him. At least it feels that way).
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Sorry, but unless you will disavow voting for another party again your apology is worthless. Any candidate that has ran in the past decade would be probably and shitty as Obama. Obama is practically no different from Bush... If Bush had passed Bush Care before Obama it would have still been just and shitty.
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Re: vote
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The greed and selfishness of these multinational corporations never ceases to amaze me. Nor does their short sightedness!
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https://www.youtube.com/watch?v=Dtx30AQpcjw
I dare say those North Koreans being executed for watching Southern shows didn't pay for them...or bought them from a bootlegger.
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Criminalization of Personal Copying
We'll all be criminals unless we can show where we got licenses for each song!
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Re: Criminalization of Personal Copying
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Re: Criminalization of Personal Copying
We'll all be criminals
You already are. If ignorance of the law is no excuse, how many people have the knowledge of all of the laws they are under so that they are not breaking them?
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US opposing first-sale doctrine
* Every mention of exhaustion of rights is marked as opposed to by the US.
* US supports Rights holders being able to prevent the importation of legally purchased goods.
Also:
* US proposes paving the way for broadcast rights (See QQ.H.12)
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So if circumventing DRM is illegal, are screenshots illegal now?
What if someone makes a DRMed database of publicly available information, and I take a screenshot of some of the data to use in a powerpoint slide, and upload it to the Internet?
I've effectively just circumvented the DRM, because people can now view some of the data in the database for free, even though it's publicly available data already.
And then what if the DRM is just plain crappy, such as it looks at the clock on your computer to determine how long your subscription lasts?
What if I turn my clock back to 2010 after my subscription expires and I'm now allowed to use the database again because my computer says it's 3 years before my 1 year subscription expires? Am I suddenly eligible for jail time or hundreds of thousands of dollars in massive fines if the person I bought the DRMed database finds out?
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TPP not actually copyright: it's POWER for corporations.
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Re: TPP not actually copyright: it's POWER for corporations.
Also...avoid treaties? What, all treaties, of all kinds? So...what's your replacement then? Come on, you've been whining about it (for a few months now) you've got to have the solution. If you're going to chastise Mike for not having a solution to the copyright problem when he talks about, then logically, you've got to have a solution to the treaties problem when you talk about it. Or are you doing to have double standards, AGAIN?
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Re: Re: TPP not actually copyright: it's POWER for corporations.
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bullshit
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Re: bullshit
i don't think anymore need be said...
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Copyright > human life?
While I'm firmly on the side of copyright reductionists (anything more than 10 or so years is ridiculous), in this case I have to say you're overdoing it.
The effects on copyright in this document are a complete an utter insanity, yes. While it may not be your intention, you're essentially saying that a lot of people may die (as implied by a lack of access to life-saving medicines and such) and then immediately following it with "But leaving that aside, COPYRIGHT! Now THAT'S the real problem we should focus on!" It kind of... undervalues the human life, don't you think?
I'm not saying you shouldn't di(scu)ss the copyright part of the document; that's one of the main points of this site, after all. I just think you could've framed it better - as it stands, you come across as an asshole, and that in itself makes a lot of people immediately dismiss your entire argument.
Sorry for the rant; as I said, I consider the proposed (and current) copyright laws an insanity and fighting them is important, but some things are more important still.
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Re: Copyright > human life?
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Re: Re: Copyright > human life?
I hope Techdirt's editors prioritize human life over corporate IP...
Right now our rights are being threatened by corporate fascists, but always remember that the power ultimately lies with us.
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Re: Re: Re: Copyright > human life?
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Ugh
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Re: Ugh
At least the metal will show up on the x-ray so the searhing will stop there.
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Re: Re: Ugh
Of course they'll make the body search as humiliating as possible.
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Same thing I was thinking. They will just keep bringing this stuff back over and over and over until it passes or they don't have enough money to get the ear of politicians any more. They have infinite patience and infinite corruption, but not infinite time. I hope the public has the will to keep pushing back until they no longer have the power to push through this kind of thing. I think that will be many years yet.
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