The final text of the Trans-Pacific Partnership (TPP) was released earlier this month. The gigantic agreement contains sweeping provisions regarding environmental regulation, pharmaceutical procurement, intellectual property, labor standards, food safety, and many other things. If adopted, it would be the most sweeping expansion of international restrictions on copyright in over two decades. Over the last five years, the TPP has been developed and negotiated in secret. With the text now locked down, participating governments will decide whether to ratify it.
The TPP is a direct threat to the public interest and the commons. It downplays the importance of the public domain and exceptions and limitations, increases the term of copyright protection, and demands harsh infringement penalties.
The TPP must be rejected.
In our initial analysis, we examine several issues that would be detrimental to the public domain, creativity and sharing, and user rights in the digital age.
- 20-year copyright term extension is unnecessary and unwarranted: The agreement requires member nations to increase their term of copyright protection to life of the authors plus 70 years. Six of the twelve participating countries will have to increase their copyright terms 20 years past the baseline required by existing international treaties.
- The mention of the public domain is lip service, at best: Text has been removed which more actively supported the public domain as a key policy objective.
- Enforcement provisions are mandatory, while exceptions and limitations are optional: Instead of securing mandatory limitations and exceptions for uses of copyrighted works under TPP, all of the provisions that recognize the rights of the public are voluntary, whereas almost everything that benefits rightsholders is binding.
- Potentially drastic infringement penalties, even for non-commercial sharing: The agreement allows for infringement penalties that are disproportionate to harm, providing for the possibility of imprisonment and excessive monetary fines for lesser infringements.
- Criminal penalties for circumventing digital rights management on works: The agreement adopts a mechanism that would prohibit the circumvention of technological protection measures (DRM) on works, and treats this type of violation as a separate offense regardless of any copyright infringing activity on the underlying content.
- Investor-state dispute settlement mechanism may be leveraged for intellectual property claims: Copyrighted materials can be subject to the investor-state dispute settlement (ISDS) mechanism, meaning that a private company could bring a lawsuit against a TPP country if that country adopts a law that the company claims would harm its right to exploit its copyright interest.
Today Creative Commons and 47 civil society organizations and academics released a letter (PDF) calling on negotiators of the Trans-Pacific Partnership (TPP) to publish the draft text of the agreement. Up until now the text of the TPP has been developed mostly in secret by the 12 negotiating countries. Wikileaks published a draft text of the chapter on intellectual property in October, revealing several provisions that would threaten access to and re-use of creative works, including an arrangement to allow countries to extend copyright terms by another 20 years. CC and other groups wrote a letter calling for that proposal to be rescinded.
Today’s call for increased accountability into the process and substance of the TPP agreement follows on the heels of the European Commission’s announcement for transparency into the negotiations over the Transatlantic Trade and Investment Partnership (TTIP), a trade agreement being negotiated between the United States and the European Union.
The Electronic Frontier Foundation (EFF) organized the letter from civil society organizations and experts. They said, “As TPP seems to arrive at its final stage, this is a prime moment for trade ministers to stop the secrecy and re-commit themselves to democratic principles of transparency and public participation in rule making.”
We couldn’t agree more.
The text of the letter (PDF) is below.
Dear TPP Ministers and Heads of Delegation,
Ever since talks over the Trans-Pacific Partnership agreement (TPP) began over five years ago, there have been broad public calls on leaders to make negotiations more transparent and open to the public. In statements, in letters, and in face-to-face meetings with trade representatives, we have urged the adoption of concrete practices that would better enable the kind of open debate and oversight that would help demystify these ongoing negotiations by making better, more accurate information available to the public.
The European Commission has recently taken leadership on this issue in the parallel context of negotiations over a Trans-Atlantic Trade and Investment Partnership (TTIP), recommending on 25 November 2014 that the EU’s TTIP text proposals henceforth be released to the public, and that other information related to TTIP be shared more broadly with all Members of the European Parliament, beyond the currently limited membership of the International Trade Committee.
The end of TPP negotiations now seems to be coming into focus. They have come down to high-level political decisions by negotiating countries, and the text is largely completed except for some resolutions on remaining landing zones. At this point, we know that there is a draft of the TPP that is mostly agreed upon by those negotiating the deal.
Today, we strongly urge you to release the unbracketed text and to release the negotiating positions for text that is bracketed, now and going forwards as any future proposals are made. The public has a legitimate interest in knowing what has already been decided on its behalf, and what is now at stake with our various countries’ positions on these controversial regulatory issues.
We call on you to consider the recent announcement from the European Commission as a welcome precedent to follow, thereby re-affirming your commitment to fundamental principles of transparency and public participation in rule making. The negotiations in Washington DC this week would provide the perfect opportunity for such a ground-breaking accord to be announced.
Australian Digital Alliance
Australian Fair Trade and Investment Network (AFTINET)
Australian Library and Information Association (ALIA)
Australian Libraries Copyright Committee (ALCC)
Electronic Frontiers Australia (EFA)
Public Health Association of Australia (PHAA)
Council of Canadians
Canadian HIV/AIDS Legal Network (Réseau juridique canadien VIH/sida)
ONG Derechos Digitales
Organización de Consumidores y Usuarios de Chile (ODECU)
Movements of the Internet Active Users (MIAU)
Creative Commons Japan
Its Our Future NZ
Malaysian AIDS Council
Positive Malaysian Treatment Access & Advocacy Group (MTAAG+)
Mexico, Chile, Peru:
International Treatment Preparedness Coalition (ITPC-LATCA) (Regional Office for
Latin American and Carribean Networks)
Alianza LAC – Global por el Acceso a Medicamentos
Peruvian Association of Consumers and Users (ASPEC)
Acción Internacional para la Salud (AIS)
Action on Smoking and Health
American Library Association
Electronic Frontier Foundation
Fight For the Future
Food & Water Watch
Government Accountability Project
Just Foreign Policy
Knowledge Ecology International
National Legislative Association on Prescription Drug Prices
Association of Research Libraries
Gabriel J. Michael, Yale Law School
Pam Samuelson, Berkeley Law School
Susan Sell, George Washington University
Sean Flynn, American University
David Levine, Princeton University
Today, Creative Commons and over 35 other organizations published an open letter urging negotiators of the Trans-Pacific Partnership (TPP) to rescind a proposal to extend copyright terms by another 20 years beyond its current, mandatory term.
This week, 12 Pacific rim countries are meeting in Ottawa, Canada, to continue secret negotiations of the widely criticized TPP trade agreement. Under the current TRIPS agreement, signatories are required to enact legislation granting copyright protection to individuals for the life of the author plus another 50 years. TPP negotiators, under the influence of large rights-holding companies, want to add another 20 years to the minimum copyright term.
If adopted, this extension would work to keep creative works out of the public domain for decades beyond the current term. It’s essentially a double-life sentence for all new works. This would be an incredible loss for the commons.
All creativity and knowledge owes something to what came before it – every creator builds on the ideas of their predecessors. Copyright is a limited right that is given to creators, but it also has a term limit to ensure we all benefit from culture and knowledge. Both the rights granted to creators and rights afforded to the public are necessary for a vibrant culture and the proliferation of knowledge. And the “Commons” in Creative Commons starts with the public domain. It’s the original corpus for remix. It’s why we’ve developed tools to better mark and dedicate content to the public domain. Together with hundreds of millions of works whose creators have chosen to share under generous terms of reuse with CC licenses, the commons is growing richer everyday.
Extending the term of copyright will undermine the potential of the public commons and needlessly limit the potential for new creativity. There is no logical reason to increase the term of copyright – an extension would create a tiny private benefit at a great cost to all of us. Most people agree that the existing term already lasts far past the amount of time required to incentivize creation (the original purpose of copyright) by granting creators a limited monopoly over a creative work. Copyright should strike a balance, giving an incentive to create while also giving the public permission to use and build on that creativity. In 2002, CC co-founder Lawrence Lessig argued against an additional 20 years of copyright protection in Eldred v. Ashcroft. Even Milton Friedman opposed the copyright term extension, calling it a “no-brainer.” Nearly all contemporary economists agree.
Increasing the term of copyright protection harms the commons. Any public policy that will further delay their entry into the public domain is contrary to the values we support – realizing the full potential of the Internet through universal access to the creativity that promotes active participation in culture and society.
Participating countries should should reject any measure in the Trans-Pacific Partnership introduced to increase the term of copyright protection. And TPP negotiations should be held in public and with the input of a broad set of stakeholders that include civil society and public interest representatives.
Although the letter has been presented to TPP negotiators today, they will remain open for further signatories to express their support. Interested organizations can endorse the letter here. Everyone can speak out by signing the petition at ourfairdeal.org.3 Comments »