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TPP Defenders Take To The Internet To Deliver Official Talking Points; Inadvertently Confirm Opponents' Worst Fears

The leaked TPP draft, pried loose from the "open and transparent" grip of the USTR, is generating plenty of commentary all over the web. After getting a good look inside, it's little wonder the USTR felt more comfortable trying to push this through under the cover of darkness.

As the criticism of the push for IP maximalism mounts, the treaty's defenders have leapt into the fray, hoping to assure everyone who wasn't previously aware of the treaty's contents (which is pretty much everyone) that there's nothing to see here and please move along.

Mike recently broke down the ridiculous claims and posturing of the USTR's "talking points." Amanda Wilson Denton, counsel to the IIPA (International Intellectual Property Alliance) has showed up right on cue to "set the record straight" on the leaked TPP draft. Let's see how well she followed the talking points. (Talking points in bold.)

     

The Draft Is Already Outdated

    The only thing that can certainly be said about this draft is that it does not reflect the current state of the negotiations...

    If it is what it purports to be, the draft reveals a snapshot in time of the ongoing work of the participating countries to hammer out an agreement in Intellectual Property Rights…

Sure, it's only a "snapshot." But unless everything's changed since then, it's a very representative snapshot of the involved countries' stances on IP issues. Just because the work is "ongoing" doesn't mean its improving.

     

What It Would Not Require: Changes to U.S. IP Law

    While it is impossible to say right now what a TPP IP chapter would do, experience provides an answer for what it would not do -- since the U.S. began negotiating FTAs again in 2000, no FTA has required a change to U.S. intellectual property law.

    The U.S. proposals mirror the current duration of copyright in U.S. law. They track the provisions already agreed in previous FTAs regarding the technologies that rights holders use to control access to their works and limitations on liability to benefit ISPs, including the FTA agreed between the United States and Korea that entered into force in 2012…

    In sum, the putative U.S. positions revealed in the leaked text would be consistent with U.S. law and prior free trade agreements approved by Congress, and most importantly would help to achieve better copyright protection among our trading partners…

    While we understand that there are parties that don't like present U.S. law and policy, this leaked text demonstrates a fealty to existing U.S. law, and not an abandonment thereof.

So, if you love current US IP law (and wish it would be expanded), you'll love the TPP. If you don't, well… get used to it. The US is running your IP show now, foreigners.

Denton does admit there is one change to existing US law, something only a maximalist would be happy to see -- a provision that would allow rights holders to pursue criminal charges against those who "aid and abet" copyright infringement. Great news! That means you no longer have to actually infringe to be held criminally accountable. All you have to do is be adjacent to it.

[Story Continues here]

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Comment Preferences

  •  Copyright in the US is insanely long. (10+ / 0-)

    I was considering possibly doing some work with project gutenberg, since I have a number of books that are out of print, and written almost a hundred years ago.  As it turns out, most works in the US are currently copyrighted not for some number of years after publication, but for something like 70 years after the author's DEATH.  So if an author writes something when he's 20, lives to be 90, the work does not pass into the common domain until 140 years after it was written.  And even then, I think there were ways to extend the copyright even longer in some cases.

    A much more sensible standard would be for a work to be copyright for something like 50 years after it was first published, or until the author's death, whichever comes last.

    •  14 years, subject to single renewal (2+ / 0-)
      Recommended by:
      mookins, Sunspots

      was the original U.S. copyright law.

      Iron sharpens Iron. Normal is a dryer setting.

      by benamery21 on Sat Nov 30, 2013 at 03:41:58 PM PST

      [ Parent ]

      •  that was in 1790-something (4+ / 0-)

        It was later bumped to 28 years with renewal.

        And any work published in the US before before 1923 was dropped into the public domain.

        That was the cause of the difficulty---if an author wrote a book in say 1920 and died in 1960 or 1980, then his book would be in the public domain in the US (published previous to 1923) but NOT in the public domain outside the US (life of the author plus 70 years). The US Supreme Court just recently ruled to place all such books BACK into copyright, so they conform to the international rules. So some books that used to be PD in the US, aren't any more.  It's caused quite a bit of trouble for the publishing industry.

        But again, none of that has anyhing to do with any trade agreement.

        In the end, reality always wins.

        by Lenny Flank on Sat Nov 30, 2013 at 04:34:37 PM PST

        [ Parent ]

    •  Thanks to Disney. (7+ / 0-)

      And Steamboat Willie.

      Why do copyright proponents never, ever reference Mark Twain's address to Congress, in which he was pleading to have copyright extended?

      Because he simultaneously denounced soulless corporations, insisting that only real human beings (and their heirs, should the modest time extension he asked for prove to be past the lifetime of the original author) benefit from the extension.

    •  US law is complex because it kept changing over (5+ / 0-)
      Recommended by:
      Eyesbright, Sky Net, Johnny Q, Pluto, Sunspots

      the years, and for almost a century the US was the only nation that did not conform to the rules of the international Berne Convention on copyright. Now, that is no longer so--the US has modified its copyright laws (again) to conform with the Berne rules.  So now, in the US as with the rest of the world, copyright extends 70 years after the death of the copyright holder.

      The reasoning behind that was to allow an author's children to receive the royalties from the author's work after his or her death.

      Before that, it was possible for books to be in the public domain in the US but NOT in the public domain in the rest of the world--a situation that caused nothing but confusion and headaches for publishers.  So now the US has modified its law to confoim to that already in effect in the rest of the world.

      None of that, by the way, had anything to do with any free trade agreement.

      In the end, reality always wins.

      by Lenny Flank on Sat Nov 30, 2013 at 03:53:56 PM PST

      [ Parent ]

  •  I'm on my phone (4+ / 0-)
    Recommended by:
    divineorder, ChemBob, NYFM, Don midwest

    all 2" and I can't find a place to rec this. Sorry

    What we need is a Democrat in the White House. Warren 2016

    by dkmich on Sat Nov 30, 2013 at 03:33:17 PM PST

  •  Trade Agreements aren't Free (5+ / 0-)

    Patent and Copyright are grants of monopoly, not Free Trade.  They are rationalized as a mechanism which is intended to incentivize progress and production, by rewarding it temporarily with rents  This seems to have been forgotten in an attempt to privatize what just a few years ago would have entered the public domain in short order, or been fair use immediately.

    Iron sharpens Iron. Normal is a dryer setting.

    by benamery21 on Sat Nov 30, 2013 at 03:40:32 PM PST

    •  well, there has never been a time when copyright (1+ / 0-)
      Recommended by:
      Eyesbright

      expired quickly. As for "fair use" that was never allowed to be commercial.

      Copyright in the US used to be for 28 years, with an option for renewal for another 28 years (since the vast majority of published books sell virtually no copies, of course, the proportion of copyrights that actually got renewed was pretty small). In the rest of the world, meanwhile, copyright was set by the Berne Convention at the lifetime of the author plus 70 years.

      The US has recently changed its own copyright law to conform to the Berne rules.

      In the end, reality always wins.

      by Lenny Flank on Sat Nov 30, 2013 at 03:56:50 PM PST

      [ Parent ]

      •  "Trade" agreements (1+ / 0-)
        Recommended by:
        JesseCW

        are not limited to restrictions on commercial use, but include narrowing of fair use exceptions  Original federal copyright law was for 14 years with an option to extend once.

        Terms of the Berne Convention have also changed over time, as has the degree to which its signatories actually implemented its terms.  The original Berne convention provided no minimum term of protection, leaving it to the signatory states.  Life of the author plus 50 years became theoretically mandatory for Berne signatories in 1948.  

        Iron sharpens Iron. Normal is a dryer setting.

        by benamery21 on Sat Nov 30, 2013 at 04:20:02 PM PST

        [ Parent ]

        •  well . . . (1+ / 0-)
          Recommended by:
          divineorder

          Fair use has NEVER included commercial use. Ever.

          In the end, reality always wins.

          by Lenny Flank on Sat Nov 30, 2013 at 04:26:53 PM PST

          [ Parent ]

          •  Depends on the definition of commercial (1+ / 0-)
            Recommended by:
            JesseCW

            If re-publication en toto in a journal for educational or scientific purposes isn't commercial, you are right.

            Iron sharpens Iron. Normal is a dryer setting.

            by benamery21 on Sat Nov 30, 2013 at 04:36:41 PM PST

            [ Parent ]

            •  well, by definition, "educational or scientific" (2+ / 0-)
              Recommended by:
              johnny wurster, divineorder

              is noncommercial.

              ;)

              But I believe you are mistaken--even then, "fair use" does not allow republication in toto. Teachers cannot, for instance, photocopy an entire textbook and pass the copies out to her class to use, unless she pays a license for that content.

              In the end, reality always wins.

              by Lenny Flank on Sat Nov 30, 2013 at 04:42:02 PM PST

              [ Parent ]

              •  It doesn't, since the codification of fair use (1+ / 0-)
                Recommended by:
                JesseCW

                in the 1970's, although author Justice Story's opinion in the 1800's had shown that there were common law limitations to blatant abuse of fair use.

                Iron sharpens Iron. Normal is a dryer setting.

                by benamery21 on Sat Nov 30, 2013 at 04:50:59 PM PST

                [ Parent ]

          •  commercial use is one factor in the multifactor (1+ / 0-)
            Recommended by:
            shenderson

            facts & circumstances analysis.  It's not determinative in and of itself.

            (noted more for others rather than you!)

            •  true (0+ / 0-)

              Another factor is how much of the work is copied, and the significance of the part.

              In one rather famous case, for instance, a book reviewer published just ONE paragraph out of the entire book--and was successfully sued for infringement. Why? Because the book he was reviewing was Gerald R Ford's autobiography, and the paragraph cited in the review was the one where he explained why he pardoned Nixon.  The publisher argued that this was the entire reason why people bought the book, and thereby by publishing this paragraph the reviewer infringed on the commercial salability of the work.

              In the end, reality always wins.

              by Lenny Flank on Sat Nov 30, 2013 at 04:57:33 PM PST

              [ Parent ]

  •  US copyright law is for the most part the same (5+ / 0-)

    as the rest of the world's now.  Current US copyright law conforms to the requirements of the Berne Convention. Previous US copyright law did not---that is one reason why it was changed, so there would be global uniformity of copyright under the Berne rules. Indeed, a recent Supreme Court ruling has taken a large number of work that had previously been in the public domain under US copyright law and placed them back into copyrighted status, to bring the US into conformity with the Berne Convention.

    I make my living as a small publisher by reprinting works that have had their copyrights expire, so it's a topic I know a thing or two about.

    The problem with TPP is not the copyright laws themselves that it enforces (those are the same copyright laws that every other nation is already under), but the interpretation of those laws into areas where they have not previously been extended (such as the Internet, drug patents, and other intellectual property areas).

    In the end, reality always wins.

    by Lenny Flank on Sat Nov 30, 2013 at 03:48:06 PM PST

    •  The real issue, I think, is the means of (2+ / 0-)
      Recommended by:
      divineorder, JesseCW

      enforcement. The copyright industry would like to criminalize the act of using property rights afforded them by contract.

      It's expensive to prevent access to the property and sell it at the same time. It's also expensive to pursue in civil proceedings those who show no respect for the contractual rights at issue.

      How much muscle will the government - via adjudicatory and police powers - put behind these contractual claims? The TPP draft material seems to expand the ambit of government or quasi-government, arbitration power at the service of copyright industry claimants.

      Courage is contagious. - Daniel Ellsberg

      by semiot on Sat Nov 30, 2013 at 04:14:52 PM PST

      [ Parent ]

    •  As you write often (1+ / 0-)
      Recommended by:
      johnny wurster

      There's not much new in the TPP.  There are plenty of multilateral and bilateral agreements that cover the internet, drug patents, etc., and pretty much every other facet of intellectual property.  There really isn't much new in the TPP.

      Cynicism is what passes for insight among the mediocre.

      by Sky Net on Sat Nov 30, 2013 at 04:49:19 PM PST

      [ Parent ]

      •  yep. what TPP does is apply the same ole rules (1+ / 0-)
        Recommended by:
        Stude Dude

        to the pacific region. The same rules are already in effect in most of the rest of the world.

        That does NOT mean that TPP is hunky-dory----it is not. It is antidemocratic and destroys national sovereignty, just as all the OTHER agreements do.

        But it does mean that "stopping TPP!!!" won't accomplish much--the very same rules will still remain in effect everywhere else, and even the Pacific region is already covered by the WTO treaty, which is just as undemocratic and crushes national sovereignty.

        The time to fight this was 20 years ago when it was first being introduced.  We did.  We lost.

        Fighting it now is like the goppers trying to repeal Social Security. It may make them feel good, but they don't have a snowball's chance in hell.

        My view is that since WTO and the regional FTAs are there and are not going away, we force our way into them, win the power to help write the rules, then use them as our ownj weapon by inserting international and global safeguards on worker rights, minimujm wages, workplace safety, environmental regulations, etc etc etc. This effort is called the "Fair Trade" movement.

        Alas, the Fair Trade movement is crippled by the fact that so many people who oppose the free trade movement don't understand what TPP is and what it actually does, and are still stuck in the old "national opposition" framework that the FTAs and WTO have already destroyed 20 years ago. The corproate trade network is now global. It cannot be beaten within any one country, nmot even the big bad USD of A.  It must be defeated globally, everywhere all at once.

        This isn't the 1980's anymore.

        In the end, reality always wins.

        by Lenny Flank on Sat Nov 30, 2013 at 05:04:43 PM PST

        [ Parent ]

        •  Sovereignty (0+ / 0-)

          I've never been so concerned about the sovereignty aspects of trade agreements.  I'm one of those wooly one worlders who really likes it when countries get together and hammer out rules and codes of conduct on how to treat each other, rather than pursuing their narrow self interest at the expense of other countries, which just ends up making everyone worse off.

          I like your approach to trade and using existing institutions to improve the rules.  However, I'm wary about including things like worker rights and safety and environmental regulations in trade agreements.  I'm all for them, but they're different from other trade rules.  For labor and environment, most countries already have legislation, but don't necessarily have the capacity to enforce rules the way we do.  I'd feel much more comfortable handling those issues in UN organizations that already address them, and including boatloads of aid to help developing countries to meet common labor and environmental goals.

          In the meantime, you've already been fairly successful, and labor and environmental chapters are now standard practice in most developed country FTAs.  They're not perfect, but they give a forum to discuss those issues and provide that aid to countries that need it.  It's a lot better than trying to tear down the whole system, which would leave you with nothing.

          Cynicism is what passes for insight among the mediocre.

          by Sky Net on Sat Nov 30, 2013 at 06:00:22 PM PST

          [ Parent ]

          •  me neither (0+ / 0-)

            Nations are one of humanity's sillier inventions.  How idiotic to assume that people on this side of an imaginary line in the dirt are better or worse than the people on that side.

            But in any case it no longer matters.  Whether we like it or not, "nations" are utterly irrelevant now. The corporations are now global--they are bigger,richer, more powerful and have more direct control over more people's lives than any mere "nation".

            For labor and environment, most countries already have legislation, but don't necessarily have the capacity to enforce rules the way we do.  I'd feel much more comfortable handling those issues in UN organizations that already address them, and including boatloads of aid to help developing countries to meet common labor and environmental goals.
            The inability (or unwillingness) of small nations to enforce such laws is precisely why their enforcement needs to be international.

            I have no objection to UN enforcement. The UN will inevitably grow into an international government anyway.  "Nations" are already economically irrelevant--it is just a matter of time until they are politically irrelevant too.

            The real fight will be to make that international global government a DEMOCRATIC one, and not just one dominated by the multinationals.

            In the end, reality always wins.

            by Lenny Flank on Sat Nov 30, 2013 at 06:12:01 PM PST

            [ Parent ]

            •  Nations aren't irrelevant (1+ / 0-)
              Recommended by:
              Don midwest

              They're always going to have the power to write and enforce laws, and collect revenue.  They also have this little thing called militaries.  Corporations don't have any of that.  If they don't make a decent product they go out of business and cease to exist.  Nations, even poorly run ones, rarely do that.  Corporations have big lobbying arms for that exact reason, they know that governments have power and aren't necessarily going to use it in their interests.

              Cynicism is what passes for insight among the mediocre.

              by Sky Net on Sat Nov 30, 2013 at 07:02:28 PM PST

              [ Parent ]

              •  even that line is being blurred (1+ / 0-)
                Recommended by:
                Nattiq

                China can be viewed as one giant corporation with an army. Indeed, the Chinese People's Liberation Army is itself a corporation, since it owns many industries.

                In the end, reality always wins.

                by Lenny Flank on Sat Nov 30, 2013 at 08:01:17 PM PST

                [ Parent ]

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