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What is the Trans-Pacific Partnership Agreement (TPP)?

The Trans-Pacific Partnership (TPP) is a secretive, multi-nation trade agreement that threatens to extend restrictive intellectual property laws across the globe.

The nine nations currently negotiating the TPP are the U.S., Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, and Brunei Darussalam. Expected to be finalized in November 2011, the TPP will contain a chapter on Intellectual Property (copyright, trademarks, patents and perhaps geographical indications) that will have a broad impact on citizens’ rights, the future of the Internet’s global infrastructure, and innovation across the world. A leaked version of the February 2011 draft U.S. TPP Intellectual Property Rights Chapter indicates that U.S. negotiators are pushing for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement.

The TPP will rewrite the global rules on IP enforcement. All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the U.S. this is likely to further entrench controversial aspects of U.S. copyright law (such as the Digital Millennium Copyright Act’s broad ban on circumventing digital locks and frequently disproprotionate statutory damages for copyright infringement) 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 U.S. IP chapter also includes provisions that appear to go beyond current U.S. law. This raises significant concerns for citizens’ due process, privacy and freedom of expression rights.

The leaked U.S. 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:

Treat temporary reproductions of copyrighted works without copyright holders’ authorization as copyright infringement. This was discussed but rejected at the intergovernmental diplomatic conference that created two key 1996 international copyright treaties, the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.
Ban parallel importation of genuine goods acquired from other countries without the authorization of copyright owners.

Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of IP. Life + 70 years for works created by individuals, and following the U.S.- Oman Free Trade Agreement, either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).

Adopt laws banning circumvention of digital locks (technological protection measures or TPMs) that mirror the U.S. Digital Millennium Copyright Act (DMCA) and treat violation of the TPM provisions as a separate offence, even when no copyright infringement is involved. This would require countries like New Zealand to completely rewrite its innovative 2008 copyright law. It would also override Australia’s carefully-crafted 2007 technological protection measure 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 U.S. digital locks provisions. In the U.S., 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.
Adopt criminal sanctions for copyright infringement that is done without a commercial motivation, based on the provisions of the 1997 U.S. No Electronic Theft Act.

Adopt the U.S. DMCA Internet Intermediaries copyright safe harbor regime in its entirety. This would require Chile to rewrite its forward-looking 2010 copyright law that currently provides for a judicial notice and takedown regime, which provides greater protection to Internet users’ expression and privacy than the DMCA’s copyright safe harbor regime.

In short, countries would have to abandon any efforts to learn from the mistakes of the U.S. experience over the last 12 years, and adopt many of the most controversial aspects of U.S. copyright law in their entirety. At the same time, the U.S. IP chapter does not export the limitations and exceptions in the U.S. copyright regime like fair use, which have enabled freedom of expression and technological innovation to flourish in the U.S. It includes only a placeholder for exceptions and limitations. This raises serious concerns about other countries’ sovereignty and the ability of national governments to set laws and policies to meet their domestic priorities.

Non-Transparent and On The Fast Track

Despite the broad scope and far-reaching implications of the TPP, negotiations for the agreement have taken place behind closed doors and outside of the checks and balances that operate at traditional multilateral treaty-making organizations such as the World Intellectual Property Organization and the World Trade Organization.

Like ACTA, the TPP is being negotiated rapidly with little transparency. Since 2009 when United States Trade Representative Ron Kirk notified the U.S. Congress that President Obama intended to begin talks on TPP, there have been five formal rounds of TPP negotiations in Melbourne, Australia (March 2010), San Francisco, USA (June, 2010), Brunei (October 2010), Auckland, New Zealand (December 2010), and Santiago, Chile (February 2011). The negotiating countries hope to complete the TPP agreement by the 19th meeting of the Economic Leaders of APEC, the Asia-Pacific Economic Cooperation forum to be held in Hawaii in November, 2011.

In the meantime, further negotiations are planned for March 24 – April 1 (round 6, Singapore), 20 – 24 June (round 7, Vietnam), 6 – 11 September (round 8, San Francisco, USA), and 24 – 28 October (round 9, Lima, Peru).

During the TPP negotiation round in Chile in February 2011, negotiators received strong messages from prominent civil society groups demanding an end to the secrecy that has shielded TPP negotiations from the scrutiny of national lawmakers and the public. Letters addressed to government representatives in Australia, Chile, Malaysia, New Zealand and the U.S. emphasized that both the process and effect of the proposed TPP agreement is deeply undemocratic. TPP negotiators apparently discussed the requests for greater public disclosure during the February 2011 negotiations, but took no action.

Why You Should Care

TPP raises significant concerns about citizens’ privacy, freedom of expression and due process rights, innovation and the future of the Internet’s global infrastructure, and the right of sovereign nations to develop policies and laws that best meet their domestic priorities and enable access to knowledge for the world’s citizens.

The Office of the U.S. Trade Representative is pursuing a TPP agreement that will require signatory counties to adopt heightened copyright protection that advances the agenda of the U.S. entertainment and pharmaceutical industries, but omits the flexibilities and exceptions that protect Internet users and technology innovators.

The TPP will affect countries beyond the nine that are currently involved in negotiations. The new TPP agreement will build upon a 2005 agreement between New Zealand, Chile, Singapore and Brunei Darussalam (the P4 agreement) but will include more extensive provisions on intellectual property and other issues. The TPP will set rules that will likely be adopted initially by the 21 member economies in the Asia-Pacific Economic Cooperation forum. The TPP is being negotiated by 9 members of APEC, and negotiators plan to finalize the “TPP concept” at the APEC Economic Leaders meeting in November 2011.

Like ACTA, the TPP Agreement is a plurilateral agreement that will be used to create new heightened global IP enforcement norms. Countries that are not parties to the negotiation will likely be asked to accede to the TPP as a condition of bilateral trade agreements with the U.S. and other TPP members, or evaluated against the TPP’s standards in the annual Special 301 process administered by the Office of the U.S. Trade Representative.