Gareth Hughes

Why the TPPA is bad for intellectual property

by Gareth Hughes

New Zealand has been hosting the Trans-Pacific Partnership (TPPA) negotiations in Auckland this month and while this has brought some media attention to this important issue, an area that hasn’t attracted much focus is the impact it will have on intellectual property (IP).

That the TPPA contains intellectual property provisions at all is a good pointer to the fact that this isn’t your traditional trade deal involving issues like tariffs and quotas. It is something much bigger and fundamental.

Though the TPPA negotiations are conducted in secret, leaked draft texts of the agreement show that the US-influenced IP chapter would have extensive negative ramifications for users’ freedom of speech, right to privacy and due process, and stifle innovation. The TPPA threatens to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement.  It is fair to say that the United States is seeking to export its preferred IP regime and copyright laws under the TPPA because it is in the self-interest of several of their largest and most powerful corporates. But is it in ours?

Under such a sweeping deal as the TPPA New Zealand would lose our sovereign ability to decide what is best for New Zealand on many fronts. From an IP perspective this means we would be likely face pressure to significantly extend the term of copyright, to recognize stronger exclusive economic rights on behalf of copyright owners, and reduce “fair use” provisions, including  specific exceptions that benefit many Kiwis (for example, shifting the format of a copyrighted work so that it can be enjoyed by the visually-impaired). All in all, it’s extreme.

Exceptions to the rule.

The rules in copyright law have, and always have had, exceptions that serve the public interest.  Good example are  Braille copies of books made for the visually impaired. It’s estimated that only 5% of the world’s books can be “read” by the visually impaired because they have been converted into accessible formats.

The Copyright Act allows the Royal New Zealand Foundation of the Blind to make Braille copies of books if the copyright owner has not done so (which is apparently around 95% of the time). The copyright exception is good public policy. The visually impaired have the same right to access knowledge as everyone else, so if the copyright owner has not provided such access then the law permits others to do it (even if it means making copies without the owner’s permission). Meaningful, quality exceptions within the copyright regime are crucial to serving the best interests of the public. The TPPA puts New Zealand’s ability to make exceptions such as this at risk.

Extending copyright.

Documents leaked from the talks have also shown that the US is proposing to extend copyright laws in NZ to 70 years or more after the death of the author or creator. Since under American law copyright duration can run to up to 120 years, there’s the possibility that copyright terms here could effectively double. The Green Party believe that this could deny Kiwis access to their culture and heritage. Such an extension would mean no new works currently under copyright would enter the public domain in New Zealand until at least the late 2050s negatively impacting access to New Zealand culture and history. In particular, ‘orphan works’ that aren’t available commercially (ie: out of print or circulation) would just not be accessible.

Kiwi listeners and artists will miss out on freely accessing and performing Kiwi classics until the 2060s. This would not benefit the musicians or composers, who would have likely died decades prior – most likely, it would favour very profitable businesses who own the copyright. Copyright is about finding a balance and ensuring creators enjoy some exclusive benefits from what they have made. However, extending it to 70 years, 95 years or even 120 years after they’ve passed on is too extreme.

Making ISPs the Internet Police.

A further reason to be concerned about the TPPA’s effect is the added burden it would place on Internet service providers (ISP’s) to act as copyright watchdogs. While our government has determined under law that ISP’s shouldn’t be held accountable for the copyright infringement of their clients or customers,  the TPPA would shift this responsibility to ISP’s – effectively asking them to patrol the content of those who use their service. If they don’t, they would be held liable and possibly face legal action for the copyright infringements of others. ISP’s, along with large online content service providers such as Facebook, Google and will face the consequences for what their users access while using their services. Imagine if we made NZ Post responsible for what people were posting!

Full and proper enforcement of this requirement is hugely impractical. Imagine if each photograph posted by every single user on Facebook had to be moderated to weed out copyright infringement before Facebook could host it. The same is true of YouTube, whose servers receive user content well in excess of an entire days worth of footage, every 60 seconds. Already, content providers like this have been known to remove content first (including legitimate parodies, remixes, or other ‘fair use’ creations) and ask questions later. If this becomes the habit of every service provider, the Internet could become a pretty sparse place.

Temporary copies.

The US-advanced copyright provisions would, if contained in the final agreement, threaten an open Internet. One provision in particular is the proposal that rights holders be empowered to ‘authorise or prohibit temporary electronic copies.’ This goes to the heart of challenging what the Internet is – a ‘giant sharing machine,’ because making temporary electronic copies is a fundamental way that computing works. As the Electronic Frontier Foundation point out: “Since it’s technically necessary to download a temporary version of everything we see—whether it’s content that is copyrighted, openly licensed, or in the public domain—does that mean that anyone who ever views content on their device could potentially be found guilty of infringement? Yes, that is, if the rightsholder decides to prohibit it. In this way, it can also deeply impact the cost of accessing copyrighted materials since it creates a new intricate layer of rights.”

Added protection for electronic temporary copies would undermine an open Internet, and it’s openness, whether in systems, software or technical standards, that drives innovation. The compliance costs of such temporary copyrights, and the threat of enforcement against any alleged breaches would have a chilling effect on innovation.

Technological Protection Measures.

Technological Protection Measures (TPMs) are devices or programmes designed to prevent any piece of content from being reproduced. Though TPMs are ostensibly intended to prevent copyright infringement, consumers will often want to get around TPMs to reproduce content lawfully – for example, converting an e-book to an audiobook format for the visually impaired, or a teacher taking an extract of a film for use in the classroom.

Under the leaked text, there are provisions that bypassing or circumventing a TPM will to be a criminal offence even if the work it protects is in the public domain or you want to exercise fair dealing rights like educational use or current affairs reporting. New Zealand’s current law lets us circumvent TPMs so long as we’re not doing it to infringe copyright, but this would make it all illegal limiting our access to legitimate access and use of information and content that we had already purchased. It is as if it would be illegal to break into your house if you lost your key, because in principle you were ‘circumventing’ the house’s locks.

While other concerning aspects of the TPPA like investor-state disputes and impacts on Pharmac are reasonably well-understood, it’s vital we stand up for New Zealand’s right to make its own decisions on IP and not be pressured into adopting the corporate-influenced US negotiators’ maximalist IP position. Progressive and flexible IP is crucial to economic development, education, and a thriving culture. We shouldn’t lose out on this front just to seal a deal with the US.

 

 

Published in Environment & Resource Management by Gareth Hughes on Mon, December 10th, 2012   

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