Quiet 'Legal Scrub' Of TPP Makes Massive Change To Penalties For Copyright Infringement Without Telling Anyone

from the sneaky-bastards dept

In early November, the "final text" of the TPP was finally released. The USTR even posted the thing to Medium, pretending that after years of secrecy it was now being transparent. As we've been told time and time again, the final document is not open to any changes. The only thing left to do was a "legal scrub" which is a final process in which the lawyers comb through the document word by word, basically to make sure there are no typos or out-and-out errors. The legal scrub is not when any substantial changes can be made.

And yet... the eagle eyed Jeremy Malcolm over at EFF has spotted an apparent change in the "legal scrub" of the Intellectual Property chapter that will massively expand criminal penalties for copyright infringing activities that have no impact on the actual market. Technically, the scrub just changed the word "paragraph" to "subparagraph" in the following sentence:

With regard to copyright and related rights piracy provided for under paragraph 1, a Party may limit application of this subparagraph to the cases in which there is an impact on the right holder’s ability to exploit the work, performance or phonogram in the market.

But the impact is massive. As Malcolm explains:

What does this surreptitious change from “paragraph” to “subparagraph” mean? Well, in its original form the provision exempted a country from making available any of the criminal procedures and penalties listed above, except in circumstances where there was an impact on the copyright holder's ability to exploit their work in the market.

In its revised form, the only criminal provision that a country is exempted from applying in those circumstances is the one to which the footnote is attached—namely, the ex officio action provision. Which means, under this amendment, all of the other criminal procedures and penalties must be available even if the infringement has absolutely no impact on the right holder's ability to exploit their work in the market. The only enforcement provision that countries have the flexibility to withhold in such cases is the authority of state officials to take legal action into their own hands.

He further notes that it's obviously a significant change that could end up criminalizing plenty of activity that is infringing, but which is totally not for profit and which may have plenty of legitimate uses. There's been a long push by the legacy copyright players to use the TPP to ratchet up criminal penalties, and many of the worst proposals were stripped from the agreement -- but with this "legal scrub" things have moved massively towards criminalization. And that's a problem.

As Malcolm notes, the USTR's "official" copy of the TPP still shows the old version, meaning that any debate about the provisions is likely to ignore this change -- but the truly "official" version, hosted by New Zealand does show the change.

Malcolm is wondering how this could have happened:

Since the change highlighted above is unarguably a substantive change, the only basis for the change to be made during legal scrubbing would be if it were an error. But is it an error?

We don't know for sure—though EFF has contacted the USTR for clarification, and we will update this post if we receive an answer. But logically, the original text doesn't seem to have been an error, because there seems to be no rational basis why countries should be allowed to limit the availability of ex officio action, but not to similarly limit the availability of the other criminal remedies.

Think about it. What sense is there in sending someone to jail for an infringement that causes no harm to the copyright holder, whether they complain about it or not? And why should it matter that the copyright holder complains about something that didn't affect them anyway? Surely, if the copyright holder suffers no harm, then a country ought to be able to suspend the whole gamut of criminal procedures and penalties, not only the availability of ex officio action.

This is no error—or if it is, then the parties were only in error in agreeing to a proposal that was complete nonsense to begin with. But most likely, this is an underhanded attempt to renegotiate the Trans-Pacific Partnership before its ink is even dry.

It is quite disturbing, especially given the secret nature of the negotiations, to have such a major change slipped in secretly after the "final" version is supposedly done.

Filed Under: changes, copyright, legal scrub, tpp, ustr

ACTA Negotiations Are 'Done'... But Negotiators Still Getting Together For A 'Legal Scrub'

from the that-sounds-dirty dept

The ACTA negotiators were pretty insistent that the last round of negotiations would be the last round -- and came out of that round with claims of a "near final" document, though many of us noted that there appeared to be substantial areas of disagreement. Since then, many people have noted significant legal issues with the current document. So what's an ACTA negotiator to do? Well, not set up another round of negotiatons, but just get folks together in something that kinda sorta sounds like another round of negotiations in lovely Sydney, Australia and just refer to it as a "legal scrub," rather than an actual negotiations (found via Glyn Moody). The document also covers the various issues that still need to be worked out -- and it certainly seems like (a) there's a lot and (b) some of them are very substantial in terms of their potential impact. But, it's not like the negotiators have any plans whatsoever to allow the public and actual stakeholders to take part in any of this discussion. Why, that might involve having to actually pay attention to what those folks have to say.

Filed Under: acta, legal scrub, negotiations