“On November 13, WikiLeaks released to the Internet what appears to be a portion of the secretly negotiated draft version of the Trans-Pacific Partnership (TPP) agreement.
Although the entire agreement reportedly runs over 1,000 pages and covers nearly every conceivable facet of commerce, the chapter leaked by the online whistleblower focuses on intellectual property rights (IPR). The publication of this section is widely considered a remarkable and timely coup, however, in light of the “decisive” meeting of the TPP chief negotiators that will take place from November 19-24 in Salt Lake City, Utah.
In a press release announcing its publication of this key section of the TPP agreement, WikiLeaks described the Intellectual Property provisions as “the most controversial chapter of the TPP.” This chapter deserves that designation because of its substantial effect on so many aspects of American trade and industry, including, as WikiLeaks points out, what would be irreparable harm to “medicines, publishers, internet services, civil liberties and biological patents.”
Other copyright and Internet freedom activists are responding in similar manner to the content of the WikiLeaks TPP revelation. A good number of commentators are pointing to the SOPA-like provisions contained in the IPR chapter now available to the public.
SOPA is an acronym for the controversial Stop Online Piracy Act, legislation that has failed repeatedly to pass in Congress. The name of the bill, like so many other inappropriately named federal follies (Affordable Care Act?), has nothing to do with the real intent: granting government control over the content and traffic on the Internet.
In an article reporting on the leak of the IPR chapter, Internet freedom and fair copyright advocate TorrentFreak points out the SOPA similarities in the TPP intellectual property chapter:
Burcu Kilic, an intellectual property lawyer with Public Citizen, says that some of the proposals in the text evoke memories of the controversial SOPA legislation in the United States.
“The WikiLeaks text also features Hollywood and recording industry inspired proposals — think about the SOPA debacle — to limit Internet freedom and access to educational materials, to force Internet providers to act as copyright enforcers and to cut off people’s Internet access,” Kilic says.
Popular online tech magazine The Verge recognized the potential harm, as well:
Critics have wasted no time in attacking the treaty, with IP reform group Knowledge Ecology International calling it “bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.” Many of the criticisms focus on the treaty’s “enforcement” section, which includes language that critics say mirrors similar provisions from America’s controversial SOPA and ACTA bills. That includes provisions that would extend copyright to temporary copies of media, and others that place the burden of enforcement specifically on local ISPs, which critics say would further establish ISPs as a de facto copyright police. Other provisions would increase the software controls on consumer hardware. “The anti-circumvention provisions seem to cement the worst parts of the anti-phone-unlocking law that we saw this summer,” says Matt Wood, policy director at Free Press. “We can’t change the US law if we’re locked into these international agreements.”
The piece by The Verge references another failed legislative effort to seize control of the Internet, a bill that would abolish Internet freedom and intellectual property rights: the Anti-Counterfeiting Trade Agreement (ACTA). ACTA-like provisions appear in the leaked TPP chapter.
This section of the draft agreement launches another attack on U.S. sovereignty through the mandate that member nations enact regulations requiring 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 their 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 contained in 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, then TPP is an all-out frontal assault.
Regardless of the flaws of the DMCA, it is U.S. law and should not be subject to de facto repeal 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 businesses, 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.
In a post-TPP world, ISPs would be forced to raise prices dramatically in order to cover the increase in their own overhead brought on by the requirement that they monitor and manage the websites they host.
Alternatively, there would undoubtedly be a large number of ISPs who would not only want to avoid the administrative burden of being forced into the role of Internet cop, but who would also rightly regard the risks of providing Internet access as outweighing the benefits.
A story published by the Electronic Frontier Foundation accurately describes the potential problems and predicts the future of the Internet should the United States agree to enter the TPP:
Private ISP enforcement of copyright poses a serious threat to free speech on the Internet, because it makes offering open platforms for user-generated content economically untenable. For example, on an ad-supported site, the costs of reviewing each post will generally exceed the pennies of revenue one might get from ads. Even obvious fair uses could become too risky to host, leading to an Internet with only cautious and conservative content.
As any news organization that maintains a Web presence knows, in the posting of news items, time is of the essence….”