LEGAL ANALYSIS: Trans Pacific Partnership Agreement: Intellectual Property Chapter

On 13 November, Wikileaks published a full draft of the IP Chapter of the Trans Pacific Partnership Agreement (‘TPP’), a multilateral trade agreement negotiated largely in secret by 12 countries in the Asia Pacific region. The draft text, which runs to 95 pages, dates from August 2013 and is the most up-to-date version of a document that has only been made available for public scrutiny through a series of leaks.  It gives, for the first time, an insight in the positions of the 12 countries, which are party to the negotiations of the TPP.

In this analysis, ARTICLE 19 reviews specific provisions of the Draft TPP related to copyright for their compliance with international human rights standards.

The leaked text confirms many of the concerns that have been expressed by ARTICLE 19 and other civil society groups, namely that the US-led proposals in the Intellectual Property (IP) Chapter – often supported by Australia and Japan – would severely infringe Internet users’ rights to freedom of expression, privacy and due process online. If adopted, signatory countries would be compelled to adopt far more restrictive copyright enforcement measures than are currently required under international copyright treaties. Several countries, such as Chile or Canada, could be forced to significantly amend their domestic copyright law in the absence of democratic oversight as the TPP negotiations have been held largely in secret.

At the same time, the leaked text reveals that there are profound disagreements between the negotiating parties, notably concerning copyright terms, intermediary liability, criminalisation of non-commercial copyright infringement and digital locks provisions. In contrast to the US aggressive proposals, countries such as Chile, Canada and New Zealand generally seek to promote more balanced intellectual property policies that better protect Internet users’ rights. It is therefore questionable whether the TPP negotiators will achieve their target of concluding the agreement by the end of 2013.

It is clear that secrecy of the TPP negotiations is motivated by attempts to avoid public scrutiny over this document. Hence, as the negotiations draw to a close, ARTICLE 19 calls on the TPP member states to release a complete, up-to-date, draft text of the TPP so as to enable meaningful scrutiny of the agreement by all stakeholders concerned.

We further urge the TPP negotiators to follow our recommendations regarding the protection of fundamental rights in the IP Chapter of the TPP.

Summary of recommendations

1. Given the potential  impact of the TPP on human rights, the negotiations should be transparent: the draft texts of the agreement and state positions on it should be made public on regular basis and should include a process for comments by all stakeholders.
2. Member states must subject the TPP to strict scrutiny as part of the ratification process.
3. The TPP should include a provision dealing with “objectives” following the original proposals made by New Zealand, Chile, Peru, Vietnam, Brunei Malaysia, Singapore, Canada and Mexico;
4. General provisions dealing with “objectives”, “principles” or “implementation” should make express reference to the importance of protecting the rights to freedom of expression, privacy and due process and more generally make reference to users’ “rights”.
5. Temporary copies should be a clear exception to copyright protection;
6. Copyright terms should be no longer than necessary so as not to impair the right to freedom of expression. For works created by individuals, this means that copyright protection should last no longer than life of the author;
7. Proposals to extend retroactive IP protection to subject matter already in the public domain should be firmly rejected.
8. Internet intermediaries should benefit from broad immunity from liability. They should not be encouraged to monitor their networks. Nor should they be encouraged to implement “three-strikes” policies. Disconnection from the Internet on copyright grounds should never be permitted.
9. Non-commercial copyright infringement should not be criminalised;
10.  The circumvention of TPMs should not be criminalised. At a minimum, any criminalisation of circumvention of TPMS should be linked to actual copyright infringement. Any exceptions to provisions criminalising circumvention of TPMs should be broadly drafted.
11.  If statutory damages are available for non-commercial infringement, they should be capped so as not to impose a disproportionate restriction on the right to freedom of expression.
12.  Limitations and exceptions to copyright should be broadly drafted and interpreted;
13.  Arbitration tribunals should not be used to deal with copyright claims. 

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