It’s called the Trans-Pacific Partnership Agreement (TPP). It’s a been heralded as the “the most important trade agreement in a generation” and yet you probably have never heard of it. That is because negotiations “have been conducted in extreme secrecy.” While it is styled a trade agreement, the TPP touches on much more than trade as noted in The Nation:
Think of the TPP as a stealthy delivery mechanism for policies that could not survive public scrutiny. Indeed, only two of the twenty-six chapters of this corporate Trojan horse cover traditional trade matters. The rest embody the most florid dreams of the 1 percent—grandiose new rights and privileges for corporations and permanent constraints on government regulation. They include new investor safeguards to ease job offshoring and assert control over natural resources, and severely limit the regulation of financial services, land use, food safety, natural resources, energy, tobacco, healthcare and more. . .
Countries would be obliged to conform all their domestic laws and regulations to the TPP’s rules—in effect, a corporate coup d’état. The proposed pact would limit even how governments can spend their tax dollars. . .
Failure to conform domestic laws to the rules would subject countries to lawsuits before TPP tribunals empowered to authorize trade sanctions against member countries. The leaked investment chapter also shows that the TPP would expand the parallel legal system included in NAFTA. Called Investor-State Dispute Resolution, it empowers corporations to sue governments—outside their domestic court systems—over any action the corporations believe undermines their expected future profits or rights under the pact. Three-person international tribunals of attorneys from the private sector would hear these cases. The lawyers rotate between serving as “judges”—empowered to order governments to pay corporations unlimited amounts in fines—and representing the corporations that use this system to raid government treasuries. The NAFTA version of this scheme has forced governments to pay more than $350 million to corporations after suits against toxic bans, land-use policies, forestry rules and more.
According to the Electronic Freedom Foundation, the TPP also would backdoor massive changes to intellectual property law worldwide:
The TPP Will Rewrite Global Rules on Intellectual Property Enforcement
All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act[DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector. The recently leaked US-proposed IP chapter also includes provisions that appear to go beyond current US law.
The leaked US IP chapter includes many detailed requirements that are more restrictive than current international standards, and would require significant changes to other countries’ copyright laws. These include obligations for countries to:
- Place Greater Liability on Internet Intermediaries: The TPP would force the adoption of the US DMCA Internet intermediaries copyright safe harbor regime in its entirety. For example, this would require Chile to rewrite its forward-looking 2010 copyright law that currently establishes a judicial notice-and-takedown regime, which provides greater protection to Internet users’ expression and privacy than the DMCA.
- Regulate Temporary Copies: Treat temporary reproductions of copyrighted works without copyright holders’ authorization as copyright infringement. The language reveals a profound disconnect with the reality of the modern computer, as all routine computer functions rely upon the regular creation of temporary copies of programs and files. As drafted, the related provision creates chilling effects not just on how we behave online, but also on the basic ability of people and companies to use and create on the Web.
- Expand Copyright Terms: Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TPP could extend copyright term protections from life of the author + 50 years, to Life + 70 years for works created by individuals, and either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).
- Enact a “Three-Step Test” Language That Puts Restrictions on Fair Use: The United States Trade Representative (USTR) is putting fair use at risk with restrictive language in the TPP’s IP chapter. US and Australia have proposed very restrictive text, while other countries such as Chile, New Zealand, and Malaysia, have proposed more flexible, user-friendly terms.
- Escalate Protections for Digital Locks: It will compel signatory nations to enact laws banning circumvention of digital locks (technological protection measures or TPMs)[PDF] that mirror the DMCA and treat violation of the TPM provisions as a separate offense even when no copyright infringement is involved. This would require countries like New Zealand to completely rewrite its innovative 2008 copyright law, as well as override Australia’s carefully-crafted 2007 TPM regime exclusions for region-coding on movies on DVDs, videogames, and players, and for embedded software in devices that restrict access to goods and services for the device—a thoughtful effort by Australian policy makers to avoid the pitfalls experienced with the US digital locks provisions. In the US, business competitors have used the DMCA to try to block printer cartridge refill services, competing garage door openers, and to lock mobile phones to particular network providers.
- Ban Parallel Importation: Ban parallel importation of genuine goods acquired from other countries without the authorization of copyright owners.
- Adopt Criminal Sanctions: Adopt criminal sanctions for copyright infringement that is done without a commercial motivation, based on the provisions of the 1997 US No Electronic Theft Act.
Here is a side-by-side comparison of some changes the TPP would affect on US IP law. If passed the agreement would drastically change environmental laws. The TPP also seems to fast-track the controversial practice of fracking.
If your practice involves intellectual property, toxic torts, or white collar crime, you’d better take a hard look at the TPP fast and let your voice be heard. As the TPP is not a treaty but a congressional-executive agreement it only requires a simple majority in the House and the Senate to pass. Any proposed agreement, no matter how styled, that would have such a drastic effect on the laws of this country deserves a full and open debate. That hasn’t happened. Let’s hope its not too late.
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