One of the big long-running stories surrounding intellectual property and digital rights has to be the secretive Trans-Pacific Partnership (TPP) agreement. Earlier this year, the Intellectual Property (IP) leaked. We offer an analysis of what is in there.
When Freezenet was first launched, one of the issues that was covered was what was in the TPP. However, while the analysis is certainly beneficial to the debate surrounding copyright, the one caveat is the fact that this was based on a draft that was leaked in February 10, 2011. A lot has changed between when that was published and today, so we have opted to make an updated analysis of the treaty. One has to keep in mind is that this is a secret draft that was designed to be withheld from the public. Because it is a draft, the document can change again when it is finalized. Since the TPP has been delayed for years, when it will actually be finalized is pretty much anyone’s guess at this stage.
The latest version of the text was leaked by KEI Online on August 5, 2015. You can view the documents yourself on their release page. the document is split into several sections and is about 95 pages long. So, we’ll highlight sections that we found of interest.
General Provisions
In Section A.5 on page 3, the following can be found:
Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, and enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection and enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
So, in other words, what is in this chapter should be enforced. Parties can provide more strict intellectual property laws if they like, but they are not necessarily obliged to.
Ratification of Treaties
In section A.8, there appears to be a heavily opposed provision by a number of negotiators which includes the following:
1. Each Party affirms that it has ratified or acceded to the following agreements […]
(e) WIPO Copyright Treaty (1996)
While this is one of a number of treaties this agreement demands members to adopt, we have some familiarity with the WIPO (World Intellectual Property Organization) treaties. The treaty was controversial for a host of reasons including the prohibition of circumvention of things like Digital rights Management (DRM). Why this is controversial is the fact that it doesn’t take into account legal exceptions various countries have like Fair Dealing (Canada) or Fair Use (US). the treaty would give rise to the more famous and more controversial US law known as the Digital Millennium Copyright act (DMCA). This can be found on the Wikipedia entry of the treaty. Another controversy of WIPO was the numerous attempts to bring in what is known as the broadcasting treaty. What the treaty would have done is create a new layer of copyright over the transmission of content. So, if a broadcaster airs something that is in the public domain, the broadcaster would have exclusive rights of that work regardless if they played a role in the creation of that content. One posting about this can be found on the Electronic Frontier Foundation (EFF). Suffice to say, WIPO has had many controversies in the past.
Anti-Competitiveness in Patents
One interesting concept currently being considered, though the US and Japan appear to be opposed to the idea, is the idea that patents can be used for encouraging an anti-competitive market. Some are trying to propose that this can be the basis for invalidating a patent. Here’s the passage in question:
Option 2: Each Party shall provide that a patent may be cancelled, revoked or nullified only on grounds that would have justified a refusal to grant the patent. A Party may also provide that fraud, misrepresentation, or inequitable conduct may be the basis for cancelling, revoking or nullifying a patent or holding a patent unenforceable.[64] [AU/CL/MY/NZ/BN/CA/MX/VN/SG propose[65]; US/JP oppose: A Party may also provide that a patent may be cancelled, revoked or nullified on the basis that the patent is used in a manner determined to be anticompetitive {, or abusive,} in a judicial or administrative proceeding, {and} where the grant of a compulsory license would not have been sufficient to prevent the said anticompetitive use or abuse ]. This Article is without prejudice to Article 5A of the Paris Convention.
The idea is certainly interesting. If someone were to patent something for the purpose of removing all competition from the market, then it could be possible to invalidate a patent on that basis. This might help in the fight against patent trolling where shell companies are set up strictly for the purpose of litigation. It’s not a provision agreed upon by all parties, but it may be seen as a positive step in the process of fixing various patent systems.
Removing Top Level Domain Privacy
If you own a domain name, and your country has a mechanism to allow privacy, then this agreement will strip away that privacy as found on Page 14:
1. In connection with each Party’s system for the management of its countrycode toplevel domain (ccTLD) domain names, the following shall be available:
(a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform DomainName DisputeResolution Policy, or that is:
(i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and
(iv) does not preclude resort to court litigation; and
(b) online public access to a reliable and accurate database of contact information concerning domainname registrants; in accordance with each Party’s laws and, where applicable, relevant administrator policies regarding protection of privacy and personal data.
One country this would affect is Canada because it’s possible to hide your personal information at the domain name registration level. What this will likely discourage is people giving real information – especially when their website revolves around controversial topics in a given country. One great example of this would be someone in Russia wanting to build a website that discusses LGBT rights and freedoms. If owner of the domain has their information publicly available, then that individual, for all we know, could be putting their life on the line. What about someone in China creating a website that discusses peoples viewpoints not approved by the Communist party? In short, this opens the floodgates to a whole range of problems.
Copyright Term Extension
One of the main arguments against the TPP is the extension of the term of copyright. Starting on page 58, the leaked document states the following:
Article QQ.G.6: Each shall provide that, where the term of protection of a work including a photographic work), performance, or phonogram is to be calculated [160]:
(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and [50][70][100] years after the author’s death; and
(b) on a basis other than the life of a natural person, the term shall be:
(i) not less than [50][70][75][95] years from the end of the calendar year of the first authorized publication [161] of the work, performance, or phonogram, or
(ii) failing such authorized publication within [25][50] years from the creation of the work, performance, or phonogram, not less than [50][70][100][120] years from the end of the calendar year of the creation of the work, performance, or phonogram.
So, at the time this document was circulating among negotiators, extending the term of copyright was in the cards. Exactly how long was still a matter of debate, but the longest term floating around was life plus 100 years. If the life of a creator is not calculated, then the term of copyright could be as long as 170 years (within 50 years of publication, copyright expires 120 years after if our reading is correct). to put this into perspective, there is one standout country that has the longest copyright term: Mexico. According to Wikipedia, that country has the length of copyright set at life plus 100 years. No other country has such an extreme length of copyright. So, worst case scenario, every country with the exception of Mexico could see a copyright term extension. The effect of this is that the public domain will remain stagnant for a number of decades because nothing new is entering it. Consumer and digital rights organizations and experts argue that this harms creativity because the public domain is not being expanded. Many argue that the current terms in many countries are already far too long as it is. So, for them, this is definitely a step in the wrong direction.
Anti-Circumvention
(a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms,[173] each Party shall provide that any person who:
(i) knowingly, or having reasonable grounds to know,[174] circumvents without authority or any effective technological measure that controls access to a protected work,[175] performance, or phonogram;[176] or
(ii) manufactures, imports, distributes[177], offers for sale or rental to the public or otherwise provide devices, products, or components, or offers to the public or provides services, that:
(A) are promoted, advertised, or otherwise marketed by that person[178] for the purpose of circumventing any effective technological measure,
(B) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure,
(C) are primarily designed, produced, or performed for the purpose of circumventing any effective technological measure, shall be liable and subject to the remedies set out in [Article QQ.H.4.17(Civil Judicial Proceedings relating to TPMs and RMIs)[180]].
Each Party shall provide for criminal procedures and penalties to be applied where any person is found to have engaged willfully[181] and for the purposes of commercial advantage or financial gain[182] in any of the above above activities.
So, essentially, breaking a copyright protection system (i.e. DRM, TPM, etc.) would land you in hot water. Are there exceptions? Here’s what’s found on page 63:
(d) (i) Each Party may provide certain exceptions and limitations to the measures implementing subparagraphs (a)(i) and (ii) in order to enable noninfringing uses where there is an actual or likely adverse impact of those measures on noninfringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party’s law, giving due consideration to evidence when presented in that process, including with respect to whether appropriate and effective measures have been taken by rightsholders to enable the beneficiaries to enjoy the limitations and exceptions to copyright and related rights under that Party’s law.
While that sounds like a win, you are then hit with what is found on page 64:
(iii) By providing exceptions and limitations under paragraph d(i) and (ii) a Party shall not undermine the adequacy of that Party’s legal system for the protection of effective technological measures, or the effectiveness of legal remedies against the circumvention of such measures, that authors, performers, or producers of phonograms used in connection with the exercise of their rights, or that restrict unauthorized acts in respect of their works, performances or phonograms, as provided for in this Chapter.
So, in other words, any fair use exceptions are pretty much muted. If there are exceptions to copyright, they can be overridden by DRM. Why all of this is in there? A possibility exists that some negotiators want to say that exceptions to copyright are respected within the TPP even when DRM enters the picture. However, all of this is simply overridden in later paragraphs. In short, fair use gets little more than lip service when discussing DRM.
Remedies for Breaking a DRM
Also in page 64 and beyond is the following:
In order to provide adequate and effective legal remedies to protect rights management information: [190]
(a) each Party shall provide that any person who without authority, and knowing, or having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of the copyright or related right of authors, performers, or producers of phonograms,
(i) knowingly [191] removes or alters any rights management information;[…]
(iii) knowingly distributed, imports for distribution, broadcasts, communicates or makes available to the public copies of works, performances, or phonograms, knowing that rights management information has been removed or altered without authority,
shall be liable and subject to the remedies set out in [Article QQ.H.4(17).]
Each [7] Party [US/SG/MX/NZ/PE/JP/BN/AU/CL/MY propose: shall] [CA propose: may] provide for criminal procedures and penalties to be applied where any person is found to have engaged willfully and for purposes of commercial advantage or financial gain in any of the above activities.
So, if you need to circumvent a DRM for personal use, you are now liable for criminal penalties. Traditionally, for many jurisdictions, circumventing DRM is typically reserved for civil penalties. Criminal penalties implies that the government would foot the bill for enforcement. In civil cases, it is typically rights holders that go after individuals. A ramping up of the laws by many accounts to say the least. What’s more, this is only the beginning because of the note that another section sets out even more penalties on top of this.
Statutory Damages
On page 67, you can find the following:
1. Each Party shall ensure that enforcement procedures as specified in this section, are available under its law[197] so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to infringements and remedies which constitute a deterrent to future infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
The language “constitute a deterrent” could imply statutory damages. In a number of file-sharing cases, non-commercial infringement fines are being scaled back for the simply reason that hundreds of thousands, if not, millions of dollars, for sharing a handful of songs, is considered unconstitutional because the fines are unreasonably high. It is not too far-fetched to suggest that the above paragraph in the TPP could seek to reverse this trend and re-instate the possibilities of exceedingly high fines.
A heavily debated section followed:
[US/NZ/MY/BN/SG/AU/CA/PE/MX/JP propose, CL/VN [199] oppose: Each Party confirms that the enforcement procedures set forth in Articles {QQ.H.4 and QQ.H.5 (civil and provisional measures) and QQ.H.7 (criminal measures)} shall be available to the same extent with respect to acts of [PE oppose: trademark,] copyright or related rights infringement in the digital environment.
In other words, the idea is being floated that if this all happens in the “digital environment”, you are definitely a criminal.
Government Involvement
On page 69, there is more discussion on what appears to be demands of government involvement:
2. Each Party recognizes the importance of collecting and analyzing statistical data and other relevant information concerning intellectual property rights infringements as well as collecting information on best practices to prevent and combat infringements.
3. Each party shall publish or otherwise make available to the public information on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative and criminal systems, such as statistical information that the Party may collect for such purposes.
Penalties Continued
As mentioned above, penalties for circumvention go further than criminal penalties. Below seems to cover infringement in general:
Article QQ.H.4: {Civil Procedures and Remedies / Civil and Administrative Procedures and
Remedies}1. Each Party shall make available to right holders[207] civil judicial procedures concerning the enforcement of any intellectual property right covered in this Chapter.
2. Each Party shall provide[208] that in civil judicial proceedings its judicial authorities have the authority at least to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person’s intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.[209]
3. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer, at least as described in paragraph 2, to pay the right holder the infringer’s profits that are attributable to the infringement.[210]
4. In determining the amount of damages under paragraph 2, its judicial authorities shall have the authority consider, inter alia , any legitimate measures of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.
So, in other words, civil damages do apply. How much are civil damages if an alleged infringer is found guilty? Well, that is up to rights holders, not a judge. Prosecution is able to determine the damages and a judge would have to accept whatever number comes out regardless of evidence to the contrary. A good example might be that a song may be sold for 99 cents, but the damages sought could be in the millions for all the prosecutors are concerned.
A question can be raised, however. What about instances of abuse? Apparently, the US is against any safeguards for that:
6. [MX/PE/NZ/CL/AU/MY/SG/CA/JP/BN/VN propose; US oppose: Each Party shall ensure that its judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide the party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney’s fees.]
when can the amount be determined? Apparently, rights holder can say the damages is one thing and raise it at any time they feel like it:
7. In civil judicial proceedings, with respect to infringement of copyright or related rights protecting works, phonograms, and performances, each Party shall establish or maintain a system that provides for one or more of the following:
(a) preestablished damages, which shall be available upon the election of the right holder; or
(b) additional damages.
Is it really amounts to whatever the rights holders feel like? Apparently yes:
9. Preestablished damages under paragraphs (7) and (8) shall be set out in an amount that would be sufficient to compensate the right holder for the harm caused by the infringement, and with a view to deterring future infringements.
Is there any safeguards? Apparently if additional damages are sought:
10. In awarding additional damages under paragraphs (7) and (8), judicial authorities shall have the authority to award such additional damages as they consider appropriate, having regard to all relevant matters, including the nature of the infringing conduct and the need to deter similar infringements in the future.
Article QQ.H.5
There are certainly some interesting elements also found in this section starting on page 73.
2. Each Party shall provide that its judicial authorities have the authority to require the applicant, with respect to provisional measures in respect of any intellectual property right, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant’s right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to such procedures.
Note the placement of the word “imminent”. In other words, an act of copyright infringement as set forth in this “trade” agreement doesn’t actually have to occur before the authorities are sent after you. There just has to be evidence that infringement is taking place or is about to take place. So, don’t even think about infringing copyright unless you want a knock on your door.
Seizing Your Cellphone at the Border
Page 74 gets even better with the following:
Article QQ.H.6: {Special Requirements Related to Border Enforcement / Special Requirements related to Border Measures}[CA propose:[220]]
1. Each Party shall provide for applications to suspend the release of, or to detain, any suspect counterfeit [US/JP/NZ/AU/MX/PE propose; CA/MY/SG/BN/VN/CL oppose: or confusing similar] trademark, or pirated copyright goods that are imported[CA propose:[221]] into [MY/VN/NZ/AU/BN/MX oppose: ,or [SG oppose: about to be] exported from,] the territory of the Party.
[…]
3. Each Party shall provide that any right holder initiating procedures for its competent authorities to suspend release of suspected counterfeit {or confusingly similar} trademark goods, or pirated copyright goods[223] into free circulation is required to provide adequate evidence to satisfy the competent authorities that under the law of the Party providing the procedures there is prima facie an infringement of the right holder’s intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder’s knowledge to make the suspected goods reasonably recognizable by its competent authorities. The requirement to provide such information shall not unreasonably deter recourse to these procedures.
This type of law was what got drew outcry from ACTA in the first place. ACTA was infamous for containing provisions that would allow authorities to seize your iPod at the border so they could inspect them. If they found something on your iPod that they thought was infringing on copyright, then they could keep your device and possibly even destroy it because you are considering someone who was trafficking. The backlash was so severe, negotiators had to back off the language a bit and say that this doesn’t apply to personal storage devices. That wasn’t enough (given the numerous other reasons why ACTA was considered bad) and ACTA was ultimately suspended. That would make it all the more surprising that negotiators have the audacity to re-instate this controversial provision in the first place. In short, if you have a cell phone, and you have something on it that could be considered infringing, authorities have the right to seize it because you are suspected of trafficking. Of course, you could also be liable for civil and criminal penalties as earlier outlined and could be fined any amount copyright holders feel like.
So, if authorities suspect and find anything considered infringing, they are apparently obligated to go running to copyright holders and reporting you to them, telling them everything about you and everyone you know and everything you have related to the case:
5. Without prejudice to a Party’s laws pertaining to privacy or the confidentiality of information, where its competent authorities have detained or suspended the release of goods that are suspected of being counterfeit or pirated, a Party may provide that its competent authorities have the authority to inform the right holder without undue delay of the names and addresses of the consignor, exporter, consignee, or importer, a description of the goods, quantity of the goods, and, if known, the country of origin of the goods.[224] Where a Party does not provide such authority to its competent authorities when suspect goods are detained or suspended from release, it shall provide at least in cases of imported goods, its competent authorities with the authority to provide the foregoing information to the right holder normally within 30 days[225] of the seizure or determination that the goods are counterfeit or pirated.
Page 76 goes even further:
7. 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 under Article QQ.H.6(1) [AU/BN/CA oppose: and (6)][232] whether the suspect goods infringe an intellectual property right. Where 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.
In other words, you could be fined on the spot because of your cell phone on top of it all. No need for a judge here. Also, no, you may not get your cell phone back. It could be destroyed:
8. 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 where such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such 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.
Who gets to pay for all of this? According to page 77, you do:
9. Where a Party establishes or assesses, in connection with the procedures described in this Article, an application fee, storage fee, or destruction fee, such fee shall not be set at an amount that unreasonably deters recourse to these procedures.
Are there any exceptions anywhere? Only this:
10. Each Party shall include in the application of the Article 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 noncommercial nature contained in travellers’ personal luggage.
Parsing through the language here, it sounds like that if the government chooses to, they may elect to make an exception for your cell phone, but the agreement does not prohibit this kind of activity. Even then, even if the government thinks that seizing and destroying your cell phone on the basis of copyright infringement is absurd, they can only say that your cell phone has to be in your luggage. For many travelers, they would prefer to have their cell phone on their person as opposed to berried in their luggage in, say, the undercarriage of a plane. When they land on the other side, it’s not unreasonable for them to want to call someone to let them know that they have arrived. If a traveler is driving across a border, it is definitely a common thing for passengers to be carrying a cell phone on their person as well. So, the risk of authorities seizing and destroying your cellphone on the basis of copyright infringement still stands here.
ISP Liability
ISP liability is something currently being considered. The draft begins on page 89 and opens with the following:
1. The Parties recognize the importance of facilitating the continued development of legitimate online services and, in a manner consistent with Article 41 of the TRIPS Agreement, providing enforcement procedures that permit effective action by rights holders against copyright infringement[289] covered under this Chapter that occurs [US propose; CL oppose: in the online environment] [CL propose; US oppose: on the internet]. Accordingly, each Party shall ensure that legal remedies are available for rights holders to address such infringement and shall establish or maintain appropriate safe harbours for Internet service providers acting as [neutral[291]] intermediaries [292]. This framework of legal remedies and safe harbours shall include:
(a) legal incentives[293] for Internet service providers to cooperate with [VN propose: authorities or] copyright owners to deter the unauthorized storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorized storage and transmission of copyrighted materials; and
The only thing that comes to mind when it comes to the word “deter” would be filtering and/or blocking. Such measures have a long history of not working because there are ways of routing around censorship on the internet. This includes proxies, network obfuscation, the dark net, and anonymous networks such as TOR. In fact, there are plenty of sources that say that filtering actually harms security because it can encourage an encryption arms race. While this doesn’t say directly this has to do with filtering or blocking, it is certainly implied here.
ISP Level Surveillance
Another element implied in the next paragraph is Internet surveillance at the provider level. As you can see with the “and” in the last snippet, there was more to that provision:
(b) limitations in its law that have the effect of precluding monetary relief against Internet service providers for copyright infringements that they do not control, initiate, or direct, and that take place through systems or networks controlled or operated by them or on their behalf.[294] [CA propose[295]
2. The limitations described in paragraph 1(b) shall cover [CA propose: at least] the following functions:
(a) transmitting, routing, or providing connections for material without modification of its content[296], or the intermediate and transient storage of such material done automatically in the course of such a technical process;
(b) caching carried out through an automated process;
(c) storage[297], at the direction of a user, of material residing on a system or network controlled or operated by or for the service provider[298]; and
(d) referring or linking users to an online location by using information location tools, including hyperlinks and directories.
And the footnote below:
[298]For greater certainty, such storage of material may include emails and their attachments stored in the Internet service provider’s server and web pages residing on the Internet service provider’s server.
So, what this seems to suggest is that surveillance will occur, even in e-mail, but ISPs won’t be on the hook for the costs associated with it.
Notice and Takedown
Notice and takedown is also included in this:
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)[299] [AU propose: by either][300]:
(a) With respect to the functions referred to in paragraph 2(c) and 2(d) above, such conditions shall include a requirement for Internet service providers to expeditiously remove or disable to material residing on their networks or systems upon {MX: one or more of the following:]:
(i) [VN propose: receiving a notification from the authority or person authorized to do so, in accordance to the national legislation of each Party; or][301][302]
(ii) obtaining actual knowledge of the infringement or becoming aware of facts of circumstances from which the infringement is apparent,[CL propose: including through effective notice of claimed infringement. For these purposes, each party shall establish appropriate procedure through an open and transparent process which is set forth in domestic law, for notices[303] of claimed infringement, and may establish such procedures for counter notices by those whose material is disabled or removed through mistake or misidentification.] [CL oppose: [CL/VN propose:[304] such as through receiving a notice [305][306][CL propose:[307]] of alleged infringement from the rights holder or a person authorized to act on its behalf, and in the absence of a counternotice from the person whose material is subject to a notice for removal or disabling indicating that the notice was issued by mistake or misidentification. [308]
(b) An Internet service provider that removes or disables access to material in good faith pursuant to and consistent with subparagraph
(a) shall be exempt from any liability for having done so, provided that it takes reasonable steps in advance or promptly after to notify the person whose material is removed or disabled.[309]
Subsequent footnote:
[309]With respect to the function in subparagraph 2(b), a Party may limit the requirements of paragraph 3 related to an Internet service provider removing or disabling access to infringing material to circumstances in which the service provider becomes aware or receives notification that the cached material has been removed or access to it has been disabled at the originating site.
Some of the details are being hammered out still, but this does seem to follow along with the concept of guilt until proven innocent as seen in the US. Such a provision would also undermine the successful notice-and-notice system currently in Canada.
Another Note on Internet Surveillance
One interesting note is the following:
6. Eligibility for the limitations in paragraph 1 may not be conditioned on the Internet service provider monitoring its service or affirmatively seeking facts indicating infringing activity.
While this may imply that ISPs are not obligated to participate in Internet surveillance, this does not say that surveillance won’t be happening in the first place. What could happen is that the ISP would be obliged to provide the infrastructure so that third parties may monitor the activities of users. All this means is that ISPs aren’t obliged to actively partake in the enforcement of copyright. Put it in another way, you are obliged to install security cameras everywhere, but a third party can sit in and watch the feeds themselves. In short, it’s a loophole.
Final Thoughts
What we’ve discussed here is only what we were able to uncover and understand. This chapter also covers a whole range of issues including geographical indicators which can affect things like spirits. It also covers patents that includes pharmaceuticals/medicine, bio-engineering, chemistry, and more. Some of this, unfortunately, is outside our scope of expertise to independently verify and examine. The above are just excerpts of what we’ve been able to find. Another point that should be made is that this is just covering one chapter in a trade agreement that has, according to Wikipedia, more than 25 chapters. Not hard to assume that this covers pretty much everything under the sun (or, at least, very close to everything). To further build on that point, there are several trade deals going on right now that are of this nature and the details of them, or even what some of the trade deals are for that matter, remain elusive.
Still, what we were able to find, there are some definite winners and losers. The winners, as far as we can determine, would be major corporations in the music industry, film industry, and major software development corporations such as Microsoft, Apple, and Sony to name a few. The losers, on the other hand, are consumers, users, citizens, consumer rights advocates, free speech, democracy, privacy, and a whole lot more. If you value your personal rights, you would be against this.
Many who do follow this have one very common concern about this: secrecy. If advocates for the trade deal say this is great for everyone, why keep the details and the text secret? For many, it has an air of “they have something to hide” and seeing leaks like this only justifies that belief.
We here at Freezenet will continue to monitor developments of this and other trade deals going on as best we can.
Drew Wilson on Twitter: @icecube85 and Google+.
