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Secret US-Pacific trade pact leak exposes power of the copyright lobby

Hush-hush TPP docs out of date but still revealing

A leak of the intellectual property section of the Trans-Pacific Partnership (TPP) trade agreement has confirmed earlier reports of American lawyers pushing for expanded intellectual-property rights across the 12 countries negotiating.

Knowledge Ecology International (KEI) has posted the May 11 version of the chapter, which is where negotiations stood as countries entered the latest talks in Hawaii last week.

Those recent talks failed to reach agreement, leading some to question whether the deal is going to be signed at all, given upcoming elections in Canada, Japan, and the United States.

But while the Hawaii negotiation failed to reach a conclusion thanks to a variety of issues – from dairy farming to pharmaceutical drug patents to the protected US sugar market – the part of the text leaked this week focuses on IP rights and highlights the continued drive by American IP lawyers to expand IP rights beyond the laws of all the other countries, save, of course, the United States.

The headline proposal is the effort to expand copyright to 70 years beyond the author's death. Currently across the world there is a pretty even split between copyright extending by 50 years and by 70 years, although many advanced economies edge toward 70 years.

Where things get interesting however is in the counter-push on increasing IP rights, which is the idea of "public domain," where some works are considered readily accessible and usable. Some countries are pushing this concept in the face of expanded IP rights and, according to the leaked docs, are getting push-back from the United States and Japan.

We should note however that the situation is not as dire as some people make it out to be. For example, you are still able to reference work for journalistic or academic reasons, for comment or criticism, for teaching and so on.

But if you had any doubt about the power of the IP lobby in the US, it is revealed later in the document that the United States is the only country that objects to the introduction of compensation if a company "has abused enforcement procedures." The text would require an over-zealous company (Warner Brothers, anyone?) to pay a defendant's expenses and possibly their lawyers' bills.

Nothing strikes more fear in an IP lawyer's heart than the idea of having to actually pay the ludicrous sums that their counterparts charge. It's bad enough keeping a straight face while sending your own client your invoice.

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When it comes to the internet, there are two key areas: television and ISP liability.

Following a successful court challenge to TV rebroadcasting service Aereo in October last year, the IP lobby has been fighting hard to limit "internet retransmission."

Thanks to the way of the internet, it is comparatively easy to take content and rebroadcast it to be picked up anywhere else on the network. Under a TPP clause, it would not be allowed to carry out such retransmission without the rights holder explicitly authorizing it. Unsurprisingly the US – which is the largest market in the world for licensing TV shows abroad – is behind this, as are Singapore and Peru. But a raft of countries including Canada, Japan, Mexico, and New Zealand are opposed.

Very important is the ISP liability discussion however. The United States is pushing for an expansion of its law (also used in the European Union), which grants internet providers legal protection if they cooperate in shutting down copyright infringers, i.e., removing material if sent a takedown notice.

That approach has hit a snag due to the fact that Canada has developed a different system for ISPs dealing with copyright infringement. Under Canada's notice-and-notice system, someone who is hosting copyright infringing material is sent a notice and an ISP is entitled to monitor their activity. However, there is no requirement to take the material down, although there is a search engine link removal system.

The reason for the difference is that under Canadian law it is not illegal to download copyrighted material, but it is illegal to upload it.

In order to introduce stronger piracy laws without trying to force Canada to change its laws (something that is never going to happen through a trade deal), the United States has made a proposal. The TPP should include its approach to ISP liability, but also include an annex that contains the Canadian approach and identifies it as an exception.

What they mean is that if countries adopt the Canadian-style approach, the United States' ISP liability approach would not apply, but if they have no approach or something less than the Canadian law, then it would apply. Unsurprisingly, a number of countries are not keen on being pushed into adopting either regime and so are opposing the measure. Related to this is an effort to create a website blocking system for websites that contain copyright infringing material.

It's not known if agreement was reached or further changes made on these IP issues at the recent Hawaii TPP conference. For that we'll probably have to wait for the next leak, expected before the end of the year. ®

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