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.

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.

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:

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 For unpublished works, the US wants a term of 120 years.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

European Commission Blames Social Networks For ACTA Failure; Worried About Its Imminent Directive On Copyright Enforcement

from the still-not-listening dept

Now that the EU's ratification of ACTA has departed from the original script of everyone just waving it through, the European Commission is clearly trying to come up with Plan B. Some insights into its thinking can be gained from the minutes (pdf) of a recent Commission meeting, pointed out to us by André Rebentisch.

Here's what the President of the European Commission, José Manuel Barroso, said about ACTA:

The President introduced the topic, commenting on the intensity and scale of the public debate and the organised campaign against the Anti-Counterfeiting Trade Agreement (ACTA). There were those in particular who felt that the agreement would lead specifically to an unwarranted restriction on freedom of expression and democracy on the Internet, and would distort the reasonable balance between intellectual property rights and other fundamental rights.

He therefore felt that the Court of Justice of the European Union should be asked to confirm the Commission’s position in this matter, namely that ACTA was consistent and compatible with the Treaties and with the Charter of Fundamental Rights of the European Union. He suggested that that day’s discussion should consider that point, but also the question of when would be an appropriate time to refer the matter to the Court, and the possibility of consulting Parliament and the Council with a view to adopting a common approach in this matter.

The suggestion that the anger over ACTA was somehow part of an "organised campaign" looks like a continuing failure to grasp that the protests were about all Internet users across Europe coming together to defend their online community. As for the "common approach" with the European Parliament, it's easy to see why the European Commission would want this: it would allow the referral of ACTA to the European Court of Justice to be framed in such a way as to increase the likelihood of a positive response from the court. It will be interesting to see whether the European Parliament acquiesces in this, or continues to take a hard line on the need for more searching questions to be asked.

Barroso's comments were followed by some observations from Karel De Gucht, the European Commissioner with direct responsibility for ACTA, who made some revealing remarks:

He noted that opposition had increased in the run-up to January’s planned vote in the US Congress on two legislative initiatives -- the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) -- aimed at increasing the protection of intellectual property rights on the Internet; in the end the vote had not been held, following a hostile campaign by social networks and the loss of White House support.

It's interesting to see De Gucht linking the growing hostility to ACTA with the storm generated by SOPA/PIPA, and giving the credit for stopping those US bills to a "hostile campaign" waged by social networks. You can tell this really worries him, because he says something similar about social networks and ACTA immediately afterwards:

Despite the signature of ACTA in January by the Commission, the Union Presidency and twenty-one other Member States, the intense media campaign which was unleashed in Europe, instigated largely by the social networks, had since led a number of Union Heads of State or Government to decide to delay signature or ratification of the agreement by their national parliaments. He added that the campaign had also had a considerable influence on Members of the European Parliament and, following recent contacts with various political groups, he now felt it would be difficult to muster a majority in favour of ACTA within the EP.

What's extraordinary is that no less than three other commissioners also spoke at the meeting about the importance of social networks, and the need to grapple with them.

Viviane Reding:

She concluded by highlighting the rising influence of social networks on the Internet and the need for the Commission to take account of this in its communication policy and in dealing with various dossiers. Instructions had already been given to the communication units in the Directorates-General.

Neelie Kroes:

She concluded by stressing the need for appropriate communication on the agreement, without waiting for the Court’s opinion, targeted particularly at the various stakeholders involved and social networks.

Michel Barnier:

was also of the opinion that the key role of social networks in public debate in Europe forced the Commission to think carefully about adapting some of its means of communication and that Members should discuss the matter as soon possible.

What emerges very clearly from this is that the most senior politicians in the European Union are completely nonplussed by the power of social networks to mobilize not just Net activists but ordinary Internet users, and are struggling to deal with it. I think we can expect to see attempts to neutralize that new force by "reaching out" to social networks in a variety of ways in the coming months. One area where that will clearly happen is for the forthcoming update on the EU's "IPR Enforcement Directive", generally known as IPRED. The Commission meeting referred to it explicitly:

As regards the planned revision of the 2004 Directive on enforcement of intellectual property rights, the Commission needed to adopt a prudent and balanced approach to this politically delicate exercise, and take account of existing texts on the protection of data and privacy in the areas of telecoms and fundamental rights.

The EC knows that it must be very careful here, because the measures already mooted for the next version of IPRED are very close to some of SOPA's bad ideas -- for example, turning ISPs into copyright cops. The European Commission has observed what happened in the US, and is clearly very concerned that the IPRED update will meet the same opposition from those mysterious, uncontrollable social networks as SOPA/PIPA did and ACTA is now doing.

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Filed Under: act, copyright, enforcement, eu, eu commission, karel de gucht, manuel barroso, social networks

Connecting With Fans Via Live Theater As Well...

from the it's-happening-everywhere... dept

For many years, my wife and I have held a season subscription to the plays at the American Conservatory Theatre (ACT) in San Francisco. They put on some really great shows -- a mix of new and old (including at least one play by either Tom Stoppard or David Mamet pretty much every season, which is great, since those are probably my two favorite playwrights). This latest season kicked off with a bang a few weeks back with an amazing adaptation of Noel Coward's Brief Encounter, done by the Kneehigh Theatre group from the UK. Having attended dozens of plays at ACT over the years, I can't remember any that I thought was quite so amazing or that made me want to run out and tell lots and lots of people to go see it. It's the most imaginatively staged play I've ever seen, and you have to have a serious psychological disorder not to smile through most of it (despite the serious subject matter: marital affairs). I think the opening line to the SF Gate review summed up my thoughts exactly:

Every so often a theater piece comes to town that is so brilliantly conceived and executed, so entertaining on every level, that you want everyone you love or even like just a bit to see it. Kneehigh Theatre's "Brief Encounter," the opening show in the American Conservatory Theater's new season, is that kind of experience.

You kind of have to see the play itself to understand what's so creative about it, but as a hint, before the play even starts, the actors show up in different parts of the theater and start playing instruments and singing songs -- totally unannounced (and many in the crowd ignored it) right up until the play starts. Then, during intermission, they ended up doing something similar in the bar area (downstairs, not upstairs), before mingling with the crowd as everyone made their way back to the theater. Considering most of the actors are on-stage close to the entire time during the play, it's noteworthy that they then end up extending things both before the play and during the intermisison. It really is a neat way for the actors to more closely "connect" with the fans at the show.

Anyway... that, by itself, obviously isn't the sort of thing we post around here, but when I saw the news that the engagement had been extended for another week (the second time already) due to popular demand, I wanted to send that news to a few friends who I knew would enjoy the show, and did a quick search to find that SF Gate review (separately, I believe the play is heading to NY and then Minnesota in the coming months, for folks in either place). In doing so, I came across a blog post from a dramaturg who works at ACT talking about how the artistic department of ACT is trying to get much more involved in meeting people at the theater and improving the overall experience:

An idea I had over the summer, the SHOP puts the creators of Words on Plays (my supervisor and me) in the theater to personally sell our product and discuss it--as well as the play itself and the theater more generally--with our patrons. Part of our theater's mission is to encourage conversation; we're taking this tenant literally. Previously Words on Plays was sold at the merchandise counter, but that counter is remaining unmanned this season because of low sales. So our timing was good.

The idea is to get more in touch with the fans coming to the theater and build a stronger relationship, while still offering "reasons to buy" (the whole RtB part...). While it sounds like direct sales of the book weren't a big deal, it is still helping more people connect with the theater overall and come back to see more plays (a bigger moneymaker than any book...):

Our patrons are most familiar with our theater's hospitality and fundraising staffs. Certainly not a bad thing, but what if this model was exchanged for one in which representatives from the artistic staff were always present to discuss what the patrons are really there to think about--the art?

This is how smaller theaters have to do it because everyone is doing everything. The artistic director is the ticket taker. The playwright is the one who knows where the fire extinguisher is. And it's lovely. Every show you are being welcomed in by a family.

This is where my thinking started. I would stand at my booth selling my product and furthering conversation about the show. But I think I may have been thinking too small. Last night I sold five copies. Commendable but negligible. But I also sold at least two couples on November, our next show, by simply telling them how funny a script it is. I spoke to another gentleman about his time in England. I made a handful of people laugh when I directed them to the new location for the hearing devices: "Why don't you put a sign up?" "Because then I wouldn't get to talk to you."

Indeed. Over the last few months, we've been seeing how the whole CwF + RtB concept isn't just working for musicians, but authors, movie makers, photographers and many other content creators as well. Most of these experiments are still early, but you get a sense that actually building real connections with fans is really working for those who truly put their hearts into it. And, oh yeah, if you're in San Francisco, you really should go check out Brief Encounter...

Filed Under: act, brief encounter, connect with fans, cwf, plays, reason to buy, rtb
Companies: american conservatory theatre, kneehigh theatre