WikiLeaks Reveals the Trans-Pacific Partnership’s Expansion of International Copyright Law

WikiLeaks Publishes TPP IP Chapter

As the Trans-Pacific Partnership or “TPP” moves closer to becoming a reality , leaked documents of the international trade agreement published by WikiLeaks have sparked concerns that the treaty’s re-envisioning of intellectual property rights could prove detrimental to citizens of signatory nations. The latest version of TPP’s intellectual property chapter, hosted on WikiLeaks servers,[1] details a series of sweeping modifications to the international status quo in regards to copyrights as well as to the civil and criminal enforcement thereof, in addition to traditional areas of intellectual property law such as patents and trademarks. Civil rights groups such as the Electronic Frontier Foundation have been harsh in their criticism of the IP chapter and the TPP in general for its lack of transparency, extension of copyright terms, and stiff legal penalties for violations.

International Copyright Law – TPP & TRIPS

TPP has been long in the making, with countries including Australia, Canada, Chile, Japan, Mexico, the United States and a half-dozen others building on a decade-old economic partnership between four pacific nations referred to as the “P4.” In 2008, the United States opened negotiations with the P4 for an expansion of the agreement, beginning a series of negotiations that resulted in the comprehensive and highly secretive trade package being debated in parliaments across the Pacific today. 

Compared to the TRIPS agreement, TPP’s international IP law predecessor, the new agreement is far narrower in terms of the number of countries affected while its IP protections are greater in scope. The Trade-Related Aspects of Intellectual Property Rights, colloquially termed TRIPS, was passed in 1994 and is administered by the World Trade Organization. Through TRIPS, the WTO requires all 158 of its members to provide a baseline set of intellectual property rights and establish mechanisms for enforcing the rights domestically. Notably, the TRIPS agreement contains only one article referring to criminal procedures for violation of IP rights, which was criticized by rights holders at the time for being both difficult to enforce as a broad standard as well as being discretionary in nature. 

TPP’s Copyright Protection Expansion

Learning from the shortcomings of TRIPS, the TPP negotiators took a more expansive view of intellectual property rights and the legal mechanisms available to enforce them. Copyright terms will be extended from 50 years after the life of the author established in TRIPS to 70 years for individuals, and either 95 or 120 years after creation for corporate owned works. Signatory nations will be required to pass statutes banning the circumvention of Digital Rights Management software, commonly used to prevent unauthorized access or use of digital goods, and will have the option to treat the circumvention of such as a separate offense in addition to any copyright violation. The treaty reiterates a three-step test for fair use of copyrighted material that was included in the TRIPS agreement but narrowly construed by a WTO arbitration panel in 2000, an interpretation which will not be binding on the TPP. The agreement will also require all members to enforce the equivalent of the Digital Millennium Copyright Act in regards to its safe harbor provision for internet service providers. This will remove the need for judicial notice before takedown requests for copyrighted materials are honored, as is currently the law in some signatory nations including Chile.

Enforcement Mechanisms for IP Violations

TPP also establishes a more robust system of civil and criminal sanctions than TRIPS in its enforcement of intellectual property provisions. On the civil side, under article H.4(2) of the Intellectual Property Chapter, infringers will have to pay court costs as part of their damages should they lose in court. Furthermore, H.4(4) states that in calculating damages to rights holders, juries must consider “any legitimate measure of value” which encompasses lost profits, the value of the infringed materials, and the recommended retail price.[2] Article H.7 adds the option to also grant punitive damages for infringement.[3] Additionally prior language stating a “three strikes” piracy policy resulting in termination of Internet services would not be included has been removed, opening the door for its inclusion at a later date.

In regards to criminal procedure, the treaty does restrict the scope of criminal offenses to copyright infringement at a commercial scale where the infringement “impact(s) on the right holder’s ability to exploit the work in the market.”[4] However, unlike TRIPS where criminal sanctions are optional, TPP mandates the enactment of statutes providing for criminal sanctions “where any person is found to have engaged willfully and for the purposes commercial advantage or financial gain.”[5] Thus in a dramatic departure from current copyright law, if individual or corporate rights holders successfully argue in court that an infringer impacted their ability to exploit their work in the market, criminal charges could be filed regardless if the infringer actually experienced financial gain.

The Path Forward for TPP

Now that TPP has been finalized, the next year will be witness to a host of parliamentary debates and ultimately votes across the dozen countries seeking to enact it. Already a public relations campaign has begun in the United States as President Obama publishes op-eds with his byline in local papers across the country espousing the benefits of the trade deal, while Japan’s ambassador toured small businesses in American cities that he said will do increased business with Pacific Rim nations. Opponents have also mobilized internationally with criticisms of the freshly leaked intellectual property chapter, from Canadian law professors against the expansion of copyright protections to preeminent Indian trade scholars who disfavor the inclusion of patent language that would target India’s booming generic drug industry.

The agreement has even reached the presidential campaign as a political issue. Candidates such as former Secretary of State Hillary Clinton, Senator Bernie Sanders, and Donald Trump have come out against the deal while former Governor Jeb Bush and Senator Marco Rubio have expressed support. With fast-track authority for the deal authorized, TPP and its intellectual property provisions must be voted on as-is in Congress, with no alterations. If it passes, it will no doubt reshape the global economy and copyright law in the coming decades.

 

[1] Trans-Pacific Partnership Agreement (TPP), Intellectual Property [Rights] Chapter, Oct. 5, 2015, available at https://wikileaks.org/tpp-ip3/WikiLeaks-TPP-IP-Chapter/WikiLeaks-TPP-IP-Chapter-051015.pdf.

[2] Id. at 40.

[3] Id. at 45-46.

[4] Id. at 48.

[5] Id. at 34, 36.

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