TPP and Reality: Richard C. Owens Claims Debunked

The Trans-Pacific Partnership continues to spark debate in some circles even going into the new year. We’ve been researching this agreement for years now and have already begun debunking myths perpetuated by TPP supporters. Richard C. Owens has published a piece supposedly debunking “alarmism” about the IP provisions in the TPP, but the claims may not hold water.

We’ve studied the IP Chapter of the TPP and published numerous analysis over the years. This includes an analysis of the officially released version of the text in a way that proves that the concerns raised in the Wikileaks version. Since then, we began a sort of myth busting project that debunked claims made by TPP supporters about the IP chapter. We’ve already debunked 5 myths last year.

Incidentally enough, the author of the myths was Richard C. Owens. While it was published in an article on the Financial Post, it turns out, Owens published a whole commentary (PDF) in MLI that elaborated on his myths. It is a more academically written piece that gives the appearance that it’s a scholarly article. as a result, it’s supposed to be more carefully vetted and scrutinized. After reading it, that would come as a surprise. So, we decided to debunk the claims written in that piece as well. Why? Because other TPP supporters have begun citing the piece as a defense to the valid concerns being raised about the TPP’s IP chapter.

Myth: The TPP keeps the status quo of Canada’s IP laws.
Source: (Page 2):

Like most treaties dealing with intellectual property, the TPP largely reinforces the status quo, at least for developed countries like the US, Japan, Canada, and Australia. This status quo is set out in treaties that antedate the TPP, some by more than 100 years, and that cover more of the world’s geography than the TPP does. These treaties reflect longstanding efforts to harmonize IP laws among nations.

Fact: While the TPP does cite many trade deals, it ensures that those treaties be ratified. Furthermore, the treaties are only a very small part of the trade deal. What the TPP also does is completely overhaul Canadas copyright laws including adding criminal penalties to circumvention, demands notice-and-takedown provisions (Canada currently has a notice-and-notice system), and demands ISP level surveillance. The claim was also previously debunked the last time we read Owens work.

Myth: The TPP extends copyright term to life plus 70 years and that’s a good thing.
Source: (Page 4)

The TPP requires Canada to change the term of copyright protection from the life of the author plus 50 years to the life of the author plus 70 years (18.63). The 70-year period 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

Fact: Even in this piece, Owns fails to say by what measure the US is “the most innovative economy in the world”. Additionally, the claim that longer copyright term means more innovation was previously debunked with references to numerous studies that have, well, thoroughly debunked that line of reasoning.

Myth: Copyright and patent extension would be irrelevant for computer software because hardly anyone applies for copyright and patents in the world of software.
source: (Page 5)

Computer software would seem to be the obvious example. It is a form of IP protected by both copyright and patent. However its commercial lifespan is typically short; many producers do not even bother to apply for available patent protection because it is expected that the value of the software will expire before the patent application process concludes. Thus, the extended term of copyright protection will be practically irrelevant.

Fact: If I said that, I couldn’t complete the statement without laughing. It may come as a shock to Owens, but software patents and copyrighted content in the software world do exist and have caused major headaches. The Electronic Frontier Foundation has devoted an entire project to invalidating bad patents that include software. This is known as the Patent Busting Project. If that isn’t enough, you can also look at Wikipedia’s list of notable software patents. Of course, larger companies can have large patent inventories. Microsoft, for example, has published its list of its roughly 41,000 patents. Microsoft is far from the only software company to hold a patent portfolio and they might not even hold the largest patent portfolio either. As for copyright, just about every major commercial software company has copyright protection. Examples would include Adobe, Apple, Microsoft (including Windows), Sony, and, well, you get the picture. Why else would major companies use the DMCA so regularly when targeting file-sharing sites? As a result, change in the patent and copyright systems can have a major impact in the world of software. Myth debunked and laughed out of the room.

Myth: Copyright isn’t strong to begin with, so who cares?
Source: (Page 5)

Copyright is just not a strong form of IP protection.

Fact: If you consider statutory damages, copyright is sometimes considered overly powerful as it is. Owens buttresses this claim by simply saying that copyright protects expressions of ideas and not ideas themselves. This is a very narrow view of copyright. Statutory damages resulting from copyright infringement does mean that violators can pay hundreds of thousands, if not, millions of dollars even if the actual damage is a fraction of a percent less. During the Jammie Thomas trial in the US, record labels sought these damages, at one point, totaled $1,920,000 for merely sharing 24 songs. The only reason this award never went through was the years of multiple appeals and the argument that the fine was unconstitutional. While the fine was ultimately greatly reduced, that hasn’t stopped threat letters being sent to alleged file-sharers that suggest that damages can range into the hundreds of thousands, if not, millions if they don’t pay up front – both in the US and in other countries. Claim debunked.

Myth: Notice-and-Takedown need not apply in Canada so far as the TPP is concerned.
Source: (Page 6)

Annex 18-E lifts the requirement for a notice-and-takedown system where certain conditions are met. Canada’s notice-and-notice regime meets those requirements. So here again we have more of the status quo.

Fact: This is a complete fabrication. Annex 18-E does no such thing. Annex 18-E clearly states the following:

1. In order to facilitate the enforcement of copyright on the Internet and to avoid unwarranted market disruption in the online environment, Article 18.82.3 and Article 18.82.4(Legal Remedies and Safe Harbours) shall not apply to a Party provided that, as from the date of agreement in principle of this Agreement, it continues to:

[…]

(d) induce Internet Service Providers offering information location tools to remove within a specified period of time any reproductions of material that they make, and communicate to the public, as part of offering the information location tool upon receiving a notice of alleged infringement and after the original material has been removed from the electronic location set out in the notice; and

(e) induce Internet service providers carrying out the function referred to in Article 18.82.2(c) (Legal Remedies and Safe Harbours) to remove or disable access to material upon becoming aware of a decision of a court of that Party to the effect that the person storing the material infringes copyright in the material.

All the rights holders have to do is find a court that will rubberstamp the demands, and it’s off to the races for a notice-and-takedown. Nothing actually has to be proven, just a mere allegation and court that is willing to go along with it. So, through a legal loophole, notice-and-takedown is, thus, created in Canada. Debunked.

Myth: New domain name registrar rules requires no changes in Canadian policy.
Source: (page 8)

Art. 18.28 requires fair, equitable, not overly burdensome, and expeditious domain name dispute resolution system, and one that doesn’t preclude judicial proceedings (18.28.1), and it also requires:

appropriate remedies shall be available at least in cases in which a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trademark (18.28.2).

Of course, if a domain name registrar lacks such rules, it should not. Thankfully, Canada’s CIRA rules already comply. Because this is all that the TPP requires there again will be no change to Canadian law or policy.

The comment is in response to Michael Geist’s concerns over the unmasking of domain name owners. Conveniently, Owens glosses over this fact and doesn’t dispute it. Instead, he took issue with the wording around regulation and simply cited part of the TPP in this section. Here’s a quote that includes the section of relevant concerns:

1. In connection with each Party’s system for the management of its country-code top-level domain (ccTLD) domain names, the following shall be available:

[…]

(b) online public access to a reliable and accurate database of contact information concerning domain-name registrants

So, for one, Owens fails to dispute the heart of the problem. For another, he states the laws surrounding this changes nothing (which they clearly do) all the while omitting the relevant portions in question. Claim debunked due to misleading statements and omission.

Owens goes on to fluff the rest of the piece by re-iterating the already debunked claims. He also points to the so-called benefits of the public domain and fair dealings as being respected (all of which suffer from copyright term extension and anti-circumvention provisions that trump them all, rendering them toothless).

Perhaps the broader question may be how MLI could allow such a baseless and poorly written piece slip through. If MLI hopes to not take a credibility hit, then maybe an investigation should be launched as to how this piece could have been allowed to be published under their name in the first place. As far as we’re concerned the claims that are supposed to dispel so-called “alarmism” have proven to be unfounded and easily dispatched by even the most basic forms of research and fact-checking. The paper has been formally debunked (wouldn’t be the first time he was debunked around here either).

Drew Wilson on Twitter: @icecube85 and Google+.