Open Source Industry Australia Says Zombie TPP Could Destroy Free Software Licensing

from the another-reason-not-to-ratify dept

It seems incredible, but the TPP trade deal is still staggering on, zombie-like. It's official name is now the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), but even the Australian government just calls it TPP-11. The "11" refers to the fact that TPP originally involved 12 nations, but the US pulled out after Donald Trump's election. The Australian Senate Standing Committee on Foreign Affairs, Defence & Trade is currently conducting an inquiry into TPP-11 as a step towards ratification by Australia. However, in its submission to the committee (pdf), Open Source Industry Australia (OSIA) warns that provisions in TPP-11's Electronic Commerce Chapter "have the potential to destroy the Australian free & open source software (FOSS) sector altogether", and calls on the Australian government not to ratify the deal. The problem lies in Article 14.17 of the TPP-11 text (pdf):

No Party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory.

In its submission to the committee, the OSIA writes:

Article 14.17 of CPTPP prohibits requirements for transfer or access to the source code of computer software. Whilst it does contain some exceptions, those are very narrow and appear rather carelessly worded in places. The exception that has OSIA up in arms covers "the inclusion of terms and conditions related to the provision of source code in commercially negotiated contracts". If Australia ratifies CPTPP, much will turn on whether the Courts interpret the term "commercially negotiated contracts" as including FOSS licences all the time, some of the time or none of the time.

If the Australian courts rule that open source licenses are not "commercially negotiated contracts", those licences will no longer be enforceable in Australia, and free software as we know it will probably no longer exist there. Even if the courts rule that free software licenses are indeed "commercially negotiated contracts", there is another problem, the OSIA says:

The wording of Art. 14.17 makes it unclear whether authors could still seek injunctions to enforce compliance with licence terms requiring transfer of source code in cases where their copyright has been infringed.

Without the ability to enforce compliance through the use of injunctions, open source licenses would once again be pointless. Although the OSIA is concerned about free software in Australia, the same logic would apply to any TPP-11 country. It would also impact other nations that joined the Pacific pact later, as the UK is considering (the UK government seems not to have heard of the gravity theory for trade). It would presumably apply to the US if it did indeed rejoin the pact, as has been mooted. In other words, the impact of this section on open source globally could be significant.

It's worth remembering why this particular article is present in TPP. It grew out of concerns that nations like China and Russia were demanding access to source code as a pre-requisite of allowing Western software companies to operate in their countries. Article 14.17 was designed as a bulwark against such demands. It's unlikely that it was intended to destroy open source licensing too, although some spotted early on that this was a risk. And doubtless a few big software companies will be only too happy to see free software undermined in this way. Unfortunately, it's probably too much to hope that the Australian Senate Standing Committee on Foreign Affairs, Defence & Trade will care about or even understand this subtle software licensing issue. The fate of free software in Australia will therefore depend on whether TPP-11 comes into force, and if so, what judges think Article 14.17 means.

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Filed Under: australia, copyright, cptpp, open source, source code, tpp

TPP Is Back, Minus Copyright Provisions And Pharma Patent Extensions, In A Clear Snub To Trump And The US

from the canada,-leader-of-the-free-world? dept

As Techdirt noted back in November, the Trans Pacific Partnership (TPP) agreement was not killed by Donald Trump's decision to pull the US out of the deal. Instead, something rather interesting happened: one of the TPP's worst chapters, dealing with copyright, was "suspended" at the insistence of the Canadian government, which suddenly took on a leading role. At the time, it wasn't clear whether this was merely a temporary ploy, or was permanent. With news that the clumsily-named "Comprehensive and Progressive Agreement for Trans-Pacific Partnership" (CPTPP) has been "concluded", it now seems that the exclusion of both copyright and pharma patent extensions is confirmed. As Michael Geist writes:

the IP chapter largely reflected U.S. demands and with its exit from the TPP, an overhaul that more closely aligns the agreement to international standards was needed. Canada succeeded on that front with an agreement to suspend most of the controversial IP provisions including those involving copyright term, patent extension, biologics protection, and digital lock rules.

That's the good news. But there's still plenty of bad stuff in the CPTPP, a sample of which is listed here by The Atlantic:

A controversial arrangement whereby companies can sue countries over their domestic laws, known as the investor-state dispute settlement [ISDS -- corporate sovereignty] system, remains in a reduced fashion. Labor and environmental protections are largely unchanged [and unsatisfactory]. The EFF's [Jeremy] Malcolm pointed to e-commerce provisions that provide only weak privacy protections, among other issues, as still being problematic. But overall, the new deal is so similar to the original that Canadian labor unions are furious that their government is still advancing it, just as labor groups in the U.S. objected under Obama.

That anger means that even in the absence of the copyright and pharma patent extensions, there is still likely to be some resistance to the new deal, and not just in Canada. For example, economists estimate that the CPTPP will boost Australia's economy by only 0.04% per year -- a negligible amount that will be swamped by fluctuations in other factors. Some Australian businesses warn that the continuing existence of bilateral trade deals with eight of the CPTPP countries will lead to a complex "noodle bowl" of rules and regulations that could make it harder, not easier, to conduct business with them. In New Zealand, a long-standing critic of TPP, Professor Jane Kelsey, is particularly worried about a chapter on electronic commerce. And in Malaysia, a consumer group has urged the government there not to sign the deal, which it said would be "even worse" than TPP for the country.

Although we still don't have the final details of the deal, and the lingering presence of corporate sovereignty is regrettable, the CPTPP signals a hopeful shift away from the usual intellectual monopoly maximalism. The omission of copyright and patents from the new deal is a significant defeat for the US, which has been the main driving force behind their routine inclusion. And the fact that the CPTPP is going ahead at all without the US is a clear snub to Trump and his rejection of such multilateral trade negotiations.

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Filed Under: canada, corporate sovereignty, cptpp, donald trump, isds, tpp, trade deals, trade negotiations, us

With The US Out, Canada Gets Copyright Out Of TPP And Moves Closer To Agreement

from the but-we-thought-it-couldn't-be-done... dept

We've been talking about the Trans Pacific Partnership (TPP) agreement for many, many years. And one point that we've made over and over again about the TPP and other trade agreements, is that there actually is a lot of good and important stuff in those agreements, and we don't understand why the US (mainly) keeps insisting on two issues that don't belong in these agreements at all: (1) "intellectual property" chapters, which are almost always the opposite of "free trade" in that they focus on ratcheting up government protectionism and monopolies for a few specific industries and (2) a section on what we refer to as corporate sovereignty, which which the trade world calls "investor state dispute settlement" or "ISDS." That's where companies can demand an private tribunal judge if a country unfairly treated that company poorly and order the country to pay the company millions or sometimes billions of dollars.

Of course, the US has been a major driver of both of those provisions -- but over and over again we were told that these kinds of agreements were "impossible" without an intellectual property chapter and corporate sovereignty. Turns out, once you get the US out of the way, things aren't so impossible. Just a couple weeks ago, we noted that many countries around the world (including the new USTR, Robert Lighthizer) appear to be souring on corporate sovereignty provisions, but the really big news is the TPP.

Right after Donald Trump became President, the US officially dropped out of the TPP negotiations, leading many to believe that the entire process was dead. Instead, the other countries have continued to negotiate, and on Friday agreed in principle on key aspects of a deal, for the newly renamed Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)

One of the stumbling blocks, on which Canada allegedly played hardball, was removing much of the intellectual property chapter (including basically all of the really bad stuff). As Michael Geist notes:

The Liberal government demonstrated genuine leadership in demanding significant changes to the flawed TPP intellectual property chapter and refusing to back down under intense pressure from some of the negotiating parties. The result isn’t perfect, but the newly named Comprehensive and Progressive Agreement for the Trans Pacific Partnership (CPTPP), which still requires considerable negotiation, features a significantly improved IP chapter that suspends some of the most problematic provisions.

Weeks after the release of the TPP text in 2015, I wrote a lengthy series on the Trouble with the TPP.  Many of the most problematic provisions, including copyright term extension, digital lock rules, and intermediary liability have been suspended from the CPTPP at the insistence of the Canadian delegation. Their removal is a remarkable victory for those that argued against overbroad, restrictive copyright provisions in the TPP and maintained that there was no reason to include unbalanced copyright provisins in a modern trade agreement.

The new version also appears to remove some of the corporate sovereignty/ISDS provisions.

There's still a lot of work to be done on the agreement, but it certainly appears that Canada has taken the lead with the US out of commission. This is particularly amusing, as Canada was a late entrant into the TPP negotiations, and part of that involved the US demanding that Canada accept the text as it was and not reopen negotiations on key points already agreed upon. And now, the end result is that the US has withdrawn and Canada led the way in ditching some of the key provisions the US had demanded.

And, again, the current deal still has some serious problems. For one, it notes that it's possible that the worrisome intellectual property provisions could re-emerge, zombie-like, at a later date. It also notes that there's still enough of the corporate sovereignty provision to be worried about (and same with telecommunications services provisions). But, on the whole, it appears that the new CPTPP is moving in a much, much better direction, in large part by dumping the intellectual property elements.

Meanwhile, later this week, NAFTA renegotiations will be taking place and intellectual property issues are on the agenda. Perhaps Canada can do the same thing it did with the TPP and convince everyone else to take that issue off the table entirely.

Filed Under: canada, copyright, corporate sovereignty, cptpp, ip chapter, isds, patents, tpp