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Destroying National Sovereignty and Usurping the Democratic Process With the TPP

“New reports on leaked draft versions of the Trans-Pacific Partnership (TPP) agreement indicate threats to the rights of news organizations to publish information critical of large corporations. The multinational trade pact will require member states to surrender sovereign control over domestic copyright laws, as well.

In a story published by the Electronic Frontier Foundation(EFF), the agreement being hammered out by the 12 Pacific rim countries will:

give private corporations new tools to undermine national sovereignty and democratic processes. Specifically, TPP would give multinational companies the power to sue countries over laws that  might diminish the value of their company or cut into their expected future profits.

EFF reports that a seemingly benign provision of the TPP agreement called the “investor-state dispute settlement” (ISDS) will revoke the right of domestic courts to settle legal disputes between participating countries and corporations with investments in that country.

In a nutshell, if a corporation feels that its ability to turn a profit on an investment made in a member country is being stymied by the country’s regulatory scheme, then that corporation may bring the dispute to the TPP bureaucracy, completely bypassing the nation’s domestic judicial system.

The EFF story summed up this TPP provision’s assault on national sovereignty:

Apparently a country’s own courts can’t be trusted to administer this kind of lawsuit, so investor-state also requires the creation of a new court. It would be comprised of three private-sector attorneys who take turns being judge and/or corporate advocate.

Even if this kangaroo court ruled in favor of the defendant nation, court costs alone would scare countries from adopting (or enforcing) pro-user policies where they might potentially inhibit investor profits. The investor-state tribunal bills its time by the day and decides for itself how many days to work, so it can rack up as many days of work they want. Given this system, it’s then no surprise that current investor-state court costs average about 8 million dollars per case. So even if it wins, the country has to pay those court fees, the lawyer fees, plus compound interest. That’s money that would doubtless be better spent elsewhere.

The process is absurd as well. Once a decision has been issued, there is no way to appeal it. That’s right, if this court rules that the nation is at fault and has to pay huge fees that could even bankrupt a government, there’s no other way for the country to overturn that decision.

The ISDS section of the chapter on intellectual property in the leaked TPP draft agreement is nearly as “absurd,” however, as the agreement’s mandate forces member nations to enact regulations that require Internet Service Providers (ISPs) to privately enforce copyright protection laws.

These private companies — many of which are very small — would be forced to take upon themselves the responsibility of patrolling for and punishing any violation of the copyright laws by its subscribers.

Current U.S. law, specifically the Digital Millennium Copyright Act (DMCA), would be supplanted by TPP Article 16.3. This provision in the TPP draft document paves the way for a new copyright enforcement scheme that extends far beyond the limits currently imposed by DMCA. In fact, it contains mandates more expansive than even those proposed in the Anti-Counterfeiting Trade Agreement (ACTA).

ACTA is widely regarded as a threat to Internet freedom, as well as to the legislative power of the Congress. If ACTA is a threat than TPP is an all-out frontal assault.

Regardless of any flaws of the DMCA, it is U.S. law and should not be subject to de facto appeal by the work of a body of internationalists who are not accountable to citizens of the United States.

Apart from the issues of sovereignty, putting such pressure on service providers is a threat not only to the owners of these small business, but also to Internet freedom, as well.

It is the good work of these ISPs that has created the Internet we know today. Were it not for the typically low-cost access these companies provide, the pool of readily accessible viewpoints, opinions, and news resources would be significantly shallower…..”

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