If you've opened any online news source today, you've probably already seen this: Wikileaks has published what is reportedly the final draft of the intellectual property (IP) chapter of the Trans Pacific Partnership agreement. That means the trade agreement as it will be signed will include this exact text, barring any last moment minor changes.
As suspected from leaks of previous versions, this is a corporate-friendly document. Believe it or not, one might read it and imagine that it was drafted by representatives from related business interests rather than consumer representatives and neutral negotiators of democratic governments. Surely, that's a coincidence though...and stop calling me Shirley.
Several of the published articles point out one of the most disturbing general characteristics of the IP chapter: the language used makes enforcement of anti-consumer provisions mandatory while any exceptions which work in favor of citizens are to be considered optional. Here's one example:
Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system ... giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.
Notice that this clause is a feel-good bromide to suggest that non-commercial "fair use" of copyrighted material can be "considered" for "appropriate balance" if a country wishes to do so. It is not obligatory at all, as in
[country X] can just say "we considered it and rejected it, especially after
[mega-corporation Y] hauled our ass into an ISDS tribunal and won a billion dollar judgment for not shutting down
[critical news site Z]."
On the other hand, the enforcement provisions to protect corporate IP are mandatory. There is no wiffle-waffle about "shall endeavor" there, just flat out orders to the signatory governments that they must prosecute, must legislate, must deregulate or regulate in order to ensure that rightsholders gain extra protection time in years of copyright and patents or to punish those who infringe on them in any way.
More transnational giveaways below the patented, trademarked, copyrighted and strictly enforced under penalty of law orange thing-a-ma-bob.
There are no exceptions for activities long considered problematic or essential by citizens and consumers. For example, some books are considered "orphan works." That means the copyright holder can't be found. That isn't so surprising since the book may have been out of print for decades, yet still under copyright due to the "life of author + 70 years" copyright law (also known as the Mickey Mouse law, to ensure that Disney's films never enter into the public domain).
So, if 25-year-old John Doe wrote a book in 1905, lived another 50 years to age 75 (dying in 1955), the copyright on that book would still belong to his heirs until 2025. If the book was published only the one time, in 1905, with very modest success, it's quite likely that even his heirs would have forgotten about their rights 110 years later, in 2015, and the publisher would no longer be in business. How does one track down the copyright holder after all of this time in order to use part of the book in a new work, or even to republish it as an interesting bit of history?
Librarians, scholars, ebook public domain publishers (like Project Gutenberg) and others would like access to these "lost" works. The TPP has no provision for doing so. Instead, it mandates punishments for any infringements, chilling all efforts to makes these materials available to the public.
Other vital functions of a free and open democracy are ignored as well, falling back to the "punish those who dare" language of the trade agreement: whistleblowering and investigative journalism. There are good reasons for protecting employees who leak information that is considered proprietary (trade secrets) if such disclosures serve a greater public interest. We need to know if a company is dumping toxic waste in a river or gaming inspectors to hide the lethality of its products. Reporters who independently gain access to such data, or who work in cooperation with whistleblowers, need to be free to inform us of dangers and criminal activities. TPP does not allow that, it mandates that such legitimate use of corporate information be protected and penalties enforced against violators.
While progressives generally hail increased international cooperation, the TPP chapter does it in a way that most of us will despise. It requires our partner countries to increase their copyright terms to our Disney-inspired "life plus 70 years," removing existing works from the public domain in those countries and preventing imminent entry into public domain for many other works.
It also requires nations to cooperate with alleged infringements of copyright, by turning in over personal information about not only the purported infringer but other parties as well:
Such information may include information regarding any person involved in any aspect of the infringement or alleged infringement.
What could this mean? Say Jane Smith is suspected of downloading a song or movie at home on her family's computer. That would allow the record or film company to demand personal information about everyone in the household, as possibly being "involved in any aspect." Moreover, the IP clauses permit the seizure of any equipment that was involved, thus allowing confiscation of the family's computer, router, cell phones, music players and so on...all based on unproven allegations.
Our notorious Digital Rights Management scam is also being exported to other countries. That's the idiocy that criminalizes your attempt to bypass or defeat anti-copying measures, even for equipment and media that you own. The media companies want to ensure that anyone who tries to make backup copies of the movies, ebooks, music or any other content which they purchased will pay a hefty fine or go to jail.
OK, it's too damn early to keep gnashing my teeth as I read this and regurgitate it for your edifying horror. There's lots more in it that is awful. Read some of the following articles and indulge your own anger and outrage. Then call or email your congress critters and tell them not to send the TPP back to the drawing board but to drive a stake through its heart and burn it with fire so that it never again springs back to life, like the soul-devouring zombie that it is.
The Final Leaked TPP Text is All That We Feared
Wikileaks release of TPP deal text stokes 'freedom of expression' fears
Wikileaks Releases Final Intellectual Property Chapter Of TPP Before Official Release
Leaked (final?) TPP Intellectual Property chapter spells doom for free speech online
Trans-Pacific Partnership intellectual property chapter favors corporate interests