CLD Says Trans-Pacific Partnership Treaty Threatens Freedom of Expression


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.

Mr. Toby Mendel, Executive Director Centre for Law and Democracy

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.