Supporters of the Trans-Pacific Partnership have, until now, used the lack of official text as a shield from criticism. Now that the text is officially released, it seems that supporters are having a particularly hard time defending the agreement. We debunk some of the claims made to support the TPP.
Supporters have long claimed that the TPP is good for everyone and will lead us into a world of prosperity once ratified. While sometimes, supporters rely on one claim to try and make a case that the TPP is something worth supporting, a recently published piece on the Financial Post actually does a very good job at putting a whole bunch of myths and claims into one convenient article. This makes it extremely easy to debunk many claims all at once. So, let’s get cracking on the myths.
Myth: Concerns that the US has its fingerprints all over the text are either well hidden in the text or non-existent altogether. Therefor, the US influence is so small, it’s almost non-existent.
This is found in the opening paragraph:
There appears to be some alarm about the intellectual property provisions of the Trans-Pacific Partnership, that the deal amounts to IP encirclement by the United States and will cost Canada dearly in the years ahead. The tracks of the foxy United States may mar the TPP, but on my reading they are exceedingly well hidden if they are there at all.
The fingerprints of the US are all over the text in the TPP. It’s so much so, that the USTR has a now infamous “TPP – Made in America” banner on their website. What about the text itself? The TPP would enforce US style anti-circumvention measures that were made famous by the DMCA law (an American law). Also in the DMCA is a notice-and-takedown system. That is found in the TPP and would be forced onto other countries. Just look for the Technological protection measures articles about this as we have to find that. In a different section that we highlighted, we found a notice-and-takedown mechanism. Notice-and-takedown is not law in Canada, but will be if this treaty is ratified.
Claim debunked.
Myth: The IP provisions do not alter current copyright laws in Canada and will keep things status quo
Found in the second paragraph:
Like most intellectual property treaties, the TPP largely enforces the status quo.
This is a complete fabrication. The TPP dramatically alters what is currently in Canadian law. Among the things the TPP alters is the criminal (not just civil) enforcement of DRM/TPM’s (criminal enforcement of non-commercial infringement does not exist in Canadian law). It will introduce massive fines for people accused (re: not convicted or tried in court) of non-commercial copyright inringement (currently, the laws suggest very small fines for non-commercial infringement). It will, again, introduce a notice-and-takedown system (Canada has a notice-and-notice system instead). It mandates ISPs to implement systems to allow third parties to spy on their users for the purpose of copyright enforcement (not a Canadian law currently). Not only is this an alteration of current laws in Canada, but represents an extreme shift that benefits corporations at the expense of citizens (even those not even partaking in accused copyright infringing activities in the first place given the problem of rampant false notices plaguing the US system).
Claim debunked.
Myth: Notice-and-Takedown only existed in the leaked copy of the TPP, not the final version
Found in the following paragraph:
As to the decisions of foreign courts, it happens in all sorts of areas of law that foreign decisions are enforced in Canada under the rules of judicial comity. This concern may have originated with a requirement for Internet service providers to take down infringing material on notice of a judgment finding infringement. In a previous leaked version of the TPP that judgment could have been foreign, but that is not the case in the final version.
The fact is, the concern was actually that notic-and-takedown provisions exist in the first place in the TPP. It was a condition that Internet Service Providers (ISPs) have safe harbor and act as mere conduits. If the concern was explicitly that the notice-and-takedown mechanisms would be handled in a foreign court, I am not aware of not only who is making the claim, but also am not aware of that being a provision in the agreement currently. Regardless, the notice-and-takedown mechanism in the final text is this (article 18.82):
3. To facilitate effective action to address infringement, each Party shall prescribe in its law conditions for Internet Service Providers to qualify for the limitations described in paragraph 1(b), or, alternatively, shall provide for circumstances under which Internet Service Providers do not qualify for the limitations described in paragraph 1(b):
(a) With respect to the functions referred to in paragraph 2(c) and paragraph 2(d), these conditions shall include a requirement for Internet Service Providers to expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the copyright infringement or becoming aware of facts or circumstances from which the infringement is apparent, such as through receiving a notice156 of alleged infringement from the right holder or a person authorised to act on its behalf,
So, the claim seems to confuse what the initial criticism was, and the section in question that raised the concerns in the first place remains in-tact in the final text. There is a notice-and-takedown mechanism in the TPP.
Claim debunked.
Myth: Copyright term extension is good and the public domain is just a minor expense to the vast new amounts of innovation that could occur because of the extended length
This is found with this paragraph:
A significant change is the extension of copyright protection from a term of the life of the author plus 50 years, to the life of the author plus 70 years.This has long been the rule in the United States, the most innovative economy in the world, demonstrating that term extensions are consonant with great innovation, and may in fact cause it. It also seems like a benefit to Canadian authors and their estates that is more than a fair trade-off for costs to the public domain.
This may very well be a complete fabrication. The evidence to increased copyright length shows that the exact opposite is true. For one, the author never specifies under what measure nor was there any citation as to why he thinks America is the most innovative country in the world. For another, there is no evidence the author used to support the claim that lengthened copyright term increases innovation.
In a letter by KEIOnline and signed by many people, experts, and organizations, there was the recognition that lengthening copyright terms is a mistake:
There is no benefit to society of extending copyright beyond the 50 years mandated by the WTO. While some TPP countries, like the United States, Mexico, Peru, Chile, Singapore or Australia, already have life + 70 (or longer) copyright terms, there is growing recognition that such terms were a mistake, and should be shortened, or modified by requiring formalities for the extended periods.
The primary harm from the life + 70 copyright term is the loss of access to countless books, newspapers, pamphlets, photographs, films, sound recordings and other works that are “owned” but largely not commercialized, forgotten, and lost. The extended terms are also costly to consumers and performers, while benefiting persons and corporate owners that had nothing to do with the creation of the work.
Life+70 is a mistake, and it will be an embarrassment to enshrine this mistake into the largest regional trade agreement ever negotiated.
Furthermore, Michael Geist noted evidence that also supports the fact that lengthened copyright term actually does far more harm than good. Citing multiple sources, Geist notes the following:
The New Zealand government estimates that this change alone will cost NZ$55 million per year for a country that is one-ninth the size of Canada. Moreover, New Zealand was able to negotiate a delayed implementation of the copyright term provision, with a shorter extension for the first 8 years and only after the full extension. The TPP also would appear to bring a copyright takedown system to Canada without the involvement of Canadian courts and potentially without the application of Canadian copyright law.
If letters signed by a whole bunch of qualified experts and news articles aren’t enough, here’s one study that concluded “extension of copyright to life + 70 years would not be a useful as an incentive to create”
(via Techdirt)
Regardless, there’s plenty of evidence to suggest that extending the length of copyright would actually do more harm than good. The author who made the claim that longer copyright terms means more creativity and causes more innovation cited exactly nothing to back his claim up.
Claim debunked.
Myth: The anti-counterfeiting provisions only benefits consumers and corporations alike and should therefore be supported
Found in this paragraph:
In the many pages of IP provisions there is a great deal of careful thought and wise provision. The text includes protection of […] greater enforcement against counterfeit goods, to the benefit of consumers and business alike; and recognition of Canada’s existing IP laws.
Of course, buried in those same provisions are laws that say border security can take and destroy your cell phone that’s on hand if they so much as think you have copyright infringing material on it.
This, of course, is found in article 18.76 which states the following:
1. Each Party shall provide for applications to suspend the release of, or to detain, any suspected counterfeit or confusingly similar trademark or pirated copyright goods that are imported into the territory of the Party.
[…]
6. Each Party shall adopt or maintain a procedure by which its competent authorities may determine within a reasonable period of time after the initiation of the procedures described in paragraph 1, paragraph 5(a), paragraph 5(b) and, if applicable, paragraph 5(c), whether the suspect goods infringe an intellectual property right.123 If a Party provides administrative procedures for the determination of an infringement, it may also provide its authorities with the authority to impose administrative penalties or sanctions, which may include fines or the seizure of the infringing goods following a determination that the goods are infringing.
7. Each Party shall provide that its competent authorities have the authority to order the destruction of goods following a determination that the goods are infringing. In cases in which the goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, the goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the release of the goods into the channels of commerce.
[…]
9. This Article also shall apply to goods of a commercial nature sent in small consignments. A Party may exclude from the application of this Article small quantities of goods of a non-commercial nature contained in travellers’ personal luggage.
So, unless your cell phone is carried in your luggage, it could be searched, seized, and destroyed so long as a border guard thinks it contains infringing goods. This is a clear example of how the TPP actually impedes the rights of consumers (namely travelers) because, under these laws, consumers now have to worry about their personal belongings being seized whereas this was not actually a worry before. This, in no way, benefits consumers and merely benefits (if at all) corporations. If you are familiar with the Anti-Counterfeiting Trade Agreement (ACTA), these provisions should be all too familiar to you.
Claim debunked.
Because so much of what was claimed was so easily debunked, this does point to the fact that supporters really need to step up their game if they are to win over people. Throwing around flimsy arguments with no evidence just isn’t going to cut it in a debate like this. Claims supporting the TPP really shouldn’t be this easy to dispute from our standpoint (and it was, in fact, a walk in the park this time).
We certainly welcome commentary as to why the TPP is good, but so far, we found no reason that people should be supporting this agreement. We look forward to those finding out more about this agreement regardless of position.
Drew Wilson on Twitter: @icecube85 and Google+.
