Trans-Pacific Partnership would harm user rights and the Commons

16 November 2015

The final text of the Trans-Pacific Partnership (TPP) has been released. The gigantic agreement contains sweeping provisions regarding environmental regulation, pharmaceutical procurement, intellectual property, labor standards, food safety, and many other things. Over the last five years, it has been developed and negotiated in secret. With the text now locked down, participating governments will decide whether to ratify it.

Creative Commons has always provided legal tools to allow anyone to share their creativity with the world. By doing so, we’ve helped steward a diverse and robust commons. It is crucial for CC to protect the viability of our legal tools, and continue to champion freely accessible and usable material by fighting for limitations and exceptions to copyright. It’s clear that certain aspects of the TPP would negatively affect those who wish to access, use, and share creative content.

If ratified, the TPP would be detrimental to the public domain, creativity and sharing, and user rights in the digital age. By downplaying the importance of the public domain and exceptions and limitations, increasing the term of copyright protection, demanding harsh infringement penalties, and even criminalizing noncommercial sharing, the TPP is a direct threat to the public interest and the commons. The TPP is antithetical to the values Creative Commons supports—realizing the full potential of the Internet through universal access to the creativity that promotes active participation in culture and society.

The TPP must be rejected.

1. 20-year copyright term extension is unnecessary and unwarranted

Each Party shall provide that in cases in which the term of protection of a work, performance or phonogram is to be calculated…on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author’s death…(Article 18.63)

In all Berne signatory countries, copyright protection is granted to authors for a limited time as a mechanism to reward creators in exchange for the right of the public at some point in the future to unconditionally reuse and draw on those works. This is copyright’s bargain. After the term of copyright ends, the works rise into the public domain, where they can be used by anyone for any purpose. While the term of copyright varies slightly from country to country, it has been steadily increasing in duration over the last 200 years. This trend is problematic for many reasons.

The chapter on Intellectual Property calls for all member nations to set their term of copyright protection to life of the authors plus 70 years (if they do not already have that term), which increases the term an additional 20 years past the baseline required by the TRIPS Agreement. Under this provision the nations of Brunei, Canada, Japan, Malaysia, New Zealand, and Vietnam would be required to increase their copyright terms. This means that works still under copyright in those countries will be automatically granted another 20 years of protection before they enter the public domain. Some of the affected member nations were able to negotiate a time delay before the term extension would take effect. For example, the 20 year term increase will not take full effect in New Zealand until 8 years after the implementation of the TPP. At the same time, Canada would be required to implement the term extension immediately, creating a two-decade gap where nothing will enter the public domain under the laws of that country. The 20 year term extension comes amid protest by several organizations—including CC—that increasing copyright terms provide a negligible incentive for authors to create more works.

There is no logical reason to increase the term of copyright: an extension would create a tiny private benefit at a great cost to the public. We already mentioned that any increase in the term of copyright will undermine the potential of the commons and needlessly limit the potential for new creativity. All creativity and knowledge owes something to what came before it—every creator builds on the ideas of their predecessors.

The ratification of the TPP would limit the size and diversity of materials that are available for everyone to build on, from art, music and other expressive cultural creations, to education resources to scientific research. It will also exacerbate the problem of orphan works, because those works would have entered into the public domain because their copyrights had expired. Instead, they’ll remain restricted by copyright for additional decades even though no ownership claim has been made, and no owner located to exercise the exclusive rights that copyright grants.

It is estimated that the copyright term extension that would be required if the TPP is enacted would cost the public hundreds of millions of dollars each year. An analysis by the government of New Zealand estimates that the cost of extending their copyright period from life +50 to life +70 “increases gradually over 20 years and averages around $55 million a year over the very long term.” Michael Geist says that if the New Zealand estimate is accurate, “the cost to the [Canadian] public alone will easily exceed $100 million per year.” Similarly, a study of Australia’s copyright term estimated that as a result of an earlier free trade agreement with the United States, extending Australia’s copyright term would cost $88 million/year because of the continuing royalties needing to be paid to rights holders.

2. The mention of the public domain is lip service, at best

The Parties recognise the importance of a rich and accessible public domain…The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain. (Article 18.15)

The inclusion of this text might otherwise have been viewed as a welcome addition, but taken in context of the rest of the document—for example in the extension of copyright terms—it does not seem that the negotiating parties care much about promoting access to and expansion of the public domain. In prior leaked drafts of the IP chapter the substance and placement of mentions of the public domain were more prominent and supportive of the public interest. These are no longer reflected in the text.

3. Enforcement provisions are mandatory, while exceptions and limitations are optional

Each Party shall ensure that enforcement procedures as specified in this Section are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies that constitute a deterrent to future infringements. (Article 18.71)

At a time when all informed observers acknowledge that limitations and exceptions are vital to a healthy copyright system, the TPP makes stronger rights mandatory and exceptions optional. Almost all of the provisions having to do with copyright in the TPP are about prioritizing the interests of rightsholders over the rights of the public. A coalition of organizations—including Creative Commons—has emphasized how critical it is that the TPP protect and promote exceptions and limitations to copyright in ways that are fit for the 21st century. We said, “flexible exceptions and limitations language must be mandatory, not merely encouraged, to better enable each TPP country to achieve balance in its copyright rules.” The final text does not support these requirements.

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions) (Article 18.66)

The final IP text is not as harmful to the public interest as previously-leaked versions. Even though the TPP does not make exceptions and limitations mandatory, the text requires that nations seek a better balance between the rights of authors and the public.

4. Potentially drastic infringement penalties, even for non-commercial sharing

Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale,” [where commercial scale includes both] “(a) acts carried out for commercial advantage or financial gain; and (b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace. (Article 18.77)

This means that infringers can have criminal charges brought against them (which could include imprisonment and large monetary fines) not only for actions that typically rise to that level—such as large-scale pirating of films or music—but also for a wide range of other noncommercial activities that would fall under the ambiguous definition of “substantial prejudicial impact” or might not otherwise constitute infringing activity.

5. Criminal penalties for circumventing digital rights management on works

Each Party shall provide for criminal procedures and penalties to be applied if any person is found to have engaged wilfully and for the purposes of commercial advantage or financial gain in any of the [circumvention] activities…Each Party shall provide that a violation of a measure implementing this Article is independent of any infringement that might occur under the Party’s law on copyright and related rights. (Article 18.68)

When there is substantial concern about the abuse of technical protection measures to serve goals entirely unrelated to copyright, the TPP fails to include meaningful safeguards. The text prohibits circumventing effective technological measures on works, and treats this violation as a separate offense regardless of any copyright infringing activity on the underlying content. These provision are similar in function to the anti-circumvention language in the U.S. Digital Millennium Copyright Act, and pose a threat to users’ abilities to use and manipulate the technologies and products they legally own.

The anti-circumvention provision permits exceptions and limitations “in order to enable non-infringing uses if there is an actual or likely adverse impact of those measures on those non-infringing uses”. This text is an improvement from previous versions, which relied on a fixed list of acceptable limitations and exceptions. However, these exceptions must be “determined through a legislative, regulatory, or administrative process”. This means that countries will need to conduct a process similar to the triennial rulemaking in the the United States in which users must petition the Copyright Office for narrow and time-limited exceptions to the anti-circumvention rules.

6. Investor-state dispute settlement mechanism may be leveraged for intellectual property claims

Investment means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include…(f) intellectual property rights (Article 9.1)

Under the TPP, a corporation can dispute actions taken by a country if those actions would interfere with the company’s investment and profits. This mechanism— called the investor-state dispute settlement process (ISDS)—allows a corporation to bring to an international tribunal a complaint against a TPP member country if that country adopts a regulation that the company argues would deprive it of profits it would have expected to earn there. The Investment chapter of the TPP permits the ISDS to be used in relation to intellectual property claims.

This provision would make it possible for intellectual property rights to be leveraged by companies to bring disputes against countries that are seen as preventing the exploitation of intellectual property. EFF notes, “a good example of this might be a country wishing to limit civil penalties for copyright infringement of orphan works, which are works whose authors are deceased or are nowhere to be found.” Under the ISDS rules, a company would be have the ability to dispute whether the TPP country should be able to reduce their penalties for an orphan works infringement.

In addition, the Investment chapter extends the ability for corporations to bring ISDS claims to works used under limitations and exceptions to copyright. As reported by Infojustice, “The TPP includes a new footnote, not previously released as part of any other investment chapter and not included in the U.S. model investment text — clarifying that private expropriation actions can be brought to challenge “the cancellation or nullification of such [intellectual property] rights,” as well as “exceptions to such rights.” This means that a corporation might be able to utilize the ISDS to challenge a country’s interpretation of limitations and exceptions, thus granting it the ability to disrupt national law by claiming that such a limitation or exception interferes with that company’s ability to leverage and profit from offering its intellectual property there.

Reject the TPP

The TPP is a sweeping agreement that attempts to bundle together a vast array of complicated and disparate matters. Over the last five years, it has been developed and negotiated in secret. These two factors—complexity and secrecy—has left civil society organizations like Creative Commons and the broader public at an extreme disadvantage, as only a privileged few stakeholders invited into the closed negotiation circle have had their interests fully considered. With the text now locked down, participating governments will decide whether to ratify it without having had the benefit of a transparent, public evaluation that could have provided some degree of credibility to the outcome.

It’s clear that most of the copyright provisions in the TPP promote the entrenched interests of rightholders at the expense of the public’s right to access and use creative works. These provisions fly in the face of the evidence-based policy movement which demands that copyright actually serves the economic and social goals it is supposed to promote. By downplaying the importance of the public domain and exceptions and limitations, increasing the term of copyright protection, demanding harsh infringement penalties, and promoting anti-circumvention mechanisms, the TPP is a direct threat to the public and the commons.

The TPP is antithetical 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. It must be rejected.