The Canada-based Centre for Law and Democracy (CLD) has raised concerns that the Trans-Pacific Partnership (TPP) Treaty trade agreement will constitute a threat to freedom of expression. The treaty establishes harsh new measures aimed at combating copyright violations. This is by extending copyright provisions to the detriment of public interest in protected works entering the public domain and being available for legitimate reuses.
Delegates from 12 countries representing 800 million people have for the past three years been secretly negotiating the TPP. The negotiations have been roundly criticized for its lack of transparency and failure to involve relevant stakeholders’ particularly non-state players which include civil societies in its negotiation processes right from inception.
CLD identified several conspicuous problems after a preliminary examination of the leaked draft copy on the chapter on Intellectual Property Rights by Wikileaks.
CLD noted that one such provision commits States Parties to extend copyright protection terms for works authored by natural persons to either 70 or 100 years after the death of the author. CLD said that it is totally inappropriate to extend the term of protection and indeed that existing terms are already far too long given the changes that have taken place in the information space since the Berne Convention. CLD said: “70 years is a significant extension in New Zealand, Canada, Malaysia, Japan, Vietnam and Brunei while 100 years would mean extensions in every state except Mexico.”
It also revealed that the treaty makes provisions that would undermine the immunity from liability that Internet Service Providers (ISPs) enjoy in certain states when their customers are found to be violating copyright online. CLD noted that: “This principle of safe harbor is a cornerstone of the Internet, without which many companies would not be unable to operate. However, a majority of the States negotiating the TPP favour making this immunity dependent on ISP’s participation in a program to terminate internet service provision to repeat copyright violators.”
According to CLD the draft treaty also imposes significant legal restrictions on the ability of users to circumvent digital locks placed by copyright holders. CLD stated that: “While the text contemplates certain exceptions to the restrictions on circumventing digital locks, it is likely that these measures would limit the ability of individuals to engage in legitimate uses of copyrighted works.” It explained that anti-circumvention laws are controversial largely because digital locks often fail to distinguish between illegitimate and legitimate uses such as the creation of transformative derivative works.
CLD said that: “Although appropriate protection for intellectual property rights is important among other things to foster a rich expressive landscape, the overzealous anti-piracy measures that many States have sought to put in place in recent years represent one of the greatest threats to freedom of expression.”
The CLD said it believes that it is inappropriate for an important document like the TPP, which has a huge potential to impact the internet and creative content production to be negotiated behind closed doors. CLD said “While we recognize that officials need some space to discuss and negotiate, we call on participating States to make drafts public on a regular basis, to be open about their core positions on critical issues and to create forums which allow for the views of other stakeholders to be heard. It is vitally important that the final document strike an appropriate balance between the freedom of expression, interests of authors and those of the wider public.”
Click here to view the leaked TPP text.