Article by Mitch Stoltz
The U.S. and other governments are meeting yet again to hash out the secret Trans-Pacific Partnership Agreement (TPP), this time in New Zealand. International trade agreements may seem far removed from our daily lives. Why should people in the U.S. take action against TPP?
Although we don't know what's in the draft treaty, and the U.S. Trade Representative refuses to publish it, the leaked drafts we've seen are alarming. TPP is likely to export some of the worst features of U.S. copyright law: a broad ban on breaking digital locks on creative work, even for legal uses, a copyright term of life plus seventy years (the current international norm is life-plus-fifty), ruinous statutory damages with no proof of actual harm, and government seizures of computers and equipment involved in alleged infringement.
OK, says Joe American, but all of these things are already in U.S. law. That's why trade negotiators are saying they don't need the Senate's approval to pass TPP. Why should we care?
Three reasons. International copyright agreements like TPP hurt U.S. businesses abroad, create pressure for more expansion of U.S. copyright law, and stand in the way of badly needed reforms to U.S. law. And it all happens through closed-door negotiations that even our elected representatives can't watch, let alone the public.
Let's take these one at a time. First, TPP, based on a leaked draft from 2011, would expand copyright in the other TPP countries, creating more opportunities for lawsuits against artists, remixers, technologists, makers, and investors - including Americans. The excesses of U.S. copyright law, including rigid anti-circumvention rules and massive damages provisions, would follow U.S. businesses and investors across the Pacific.
Second, TPP could provide legal and rhetorical ammunition for new expansions of U.S. copyright law. This has happened before. In the early 1990s, the entertainment industry tried to convince Congress to make breaking of digital locks (DRM) on copyrighted materials illegal. Congress didn't act. Lobbyists turned to the treaty process, working "anti-circumvention" rules into the 1996 WIPO Copyright Treaty. When the lobbyists came back to Congress in 1998, they explained that the U.S. now had an obligation to follow through on its treaty promises by passing a broad anti-circumvention rule. This time, Congress acted, passing the Digital Millennium Copyright Act with its anti-circumvention rules that have caused so much trouble for coders, makers, remixers, and security researchers over the years.
TPP could do something similar. For example, the leaked draft requires countries to extend copyright to all temporary copies. In the U.S., many temporary digital copies of copyrighted works are legal, without anyone's permission. Copies of working computer programs in memory are exempt from copyright, as are some temporary buffer copies that make streaming video work. TPP could lead entertainment industry lobbyists to argue that Congress must crack down on these useful, legal copies, because our trade negotiators promised the other TPP countries behind closed doors that we would do so.
TPP could also affect open questions that the U.S. courts haven't decided yet, like whether materials published and legally sold abroad can be resold in the U.S. without the copyright owner's permission. The U.S. Supreme Court is considering that question. The entertainment lobbies might also use the international "three-step test" language in a TPP draft to put a ceiling on fair use. We saw an attempt like this in the Aereo cases, where copyright owners argued that the US-South Korea free trade agreement required the court to shut down an Internet TV service that operates only in New York City. Using an international agreement to put a heavy thumb on the scales of U.S. justice in copyright cases is what we call "policy laundering." Even if the text of TPP is, by some lawyerly arguments, compatible with the U.S. Copyright Act, it will still influence businesses, courts, and people in their daily lives in the U.S., and we call that changing the law.
Third, even if TPP doesn't change U.S. law, it will still provide ammunition for the entertainment industry and their allies in Congress to prevent some badly needed reforms. We need to reduce or eliminate statutory damages, allow for circumventing digital locks for lawful purposes, and resist any more extensions to copyright terms. Opponents of reform may argue that TPP ties Congress's hands. True or not, that rhetoric could be one more obstacle to improving the law.
We live in an interconnected world, and America's actions on the world stage affect us strongly here at home. Take action now to demand that the U.S. government open up the TPP drafts to the public, and that the government negotiate for your interests - not the entertainment companies'.
Cross-posted from Electronic Frontier Foundation