Home > Uncategorized > What is the Trans-Pacific Partnership Agreement (TPP)?

What is the Trans-Pacific Partnership Agreement (TPP)?

by Electronic Frontier Foundation (undated in 2011)

Defending your rights in the digital world

The Trans-Pacific Partnership (TPP) is a secretive, multi-nation trade agreement that threatens to extend restrictive intellectual property laws across the globe.

The nine nations currently negotiating the TPP are the US, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, and Brunei Darussalam. Expected to be finalized in November 2011, the TPP will contain a chapter on Intellectual Property (copyright, trademarks, patents and perhaps geographical indications) that will have a broad impact on citizens’ rights,  the future of the Internet’s global infrastructure, and innovation across the world. A leaked version of the February 2011 draft US TPP Intellectual Property Rights Chapter {1} indicates that US negotiators are pushing for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement {2}.

The TPP will rewrite the global rules on Intellectual Property (“IP”) enforcement. All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act’s {3} broad ban on circumventing digital locks and frequently disproprotionate statutory damages for copyright infringement) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector. The recently leaked US IP chapter also includes provisions that appear to go beyond current US law. This raises significant concerns for citizens’ due process, privacy and freedom of expression rights.

The leaked US IP chapter includes many detailed requirements that are more restrictive than current international standards, and would require significant changes to other countries’ copyright laws. These include obligations for countries to:

* Treat temporary reproductions of copyrighted works without copyright holders’ authorization as copyright infringement. This was discussed but rejected at the intergovernmental diplomatic conference that created two key 1996 international copyright treaties, the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.

* Ban parallel importation of genuine goods acquired from other countries without the authorization of copyright owners.

* Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of IP. Life plus seventy years for works created by individuals, and following the US- Oman Free Trade Agreement, either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).

* Adopt laws banning circumvention of digital locks (technological protection measures or TPMs) that mirror the US Digital Millennium Copyright Act (DMCA) {4} and treat violation of the TPM provisions as a separate offence, even when no copyright infringement is involved. This would require countries like New Zealand to completely rewrite its innovative 2008 copyright law. It would also override Australia’s carefully-crafted 2007 technological protection measure regime exclusions for region-coding on movies on DVDs, videogames, and players, and for embedded software in devices that restrict access to goods and services for the device – a thoughtful effort by Australian policy makers to avoid the pitfalls experienced with the US digital locks provisions. In the US, business competitors have used the DMCA to try to block printer cartridge refill services, competing garage door openers, and to lock mobile phones to particular network providers.

* Adopt criminal sanctions for copyright infringement that is done without a commercial motivation, based on the provisions of the 1997 US No Electronic Theft Act.

* Adopt the US DMCA Internet Intermediaries copyright safe harbor regime in its entirety.  This would require Chile to rewrite its forward-looking 2010 copyright law {5} that currently provides for a judicial notice and takedown regime, which provides greater protection to Internet users’ expression and privacy than the DMCA’s copyright safe harbor regime.

In short, countries would have to abandon any efforts to learn from the mistakes of the US experience over the last twelve years, and adopt many of the most controversial aspects of US copyright law in their entirety. At the same time, the US IP chapter does not export the limitations and exceptions in the US copyright regime like fair use, which have enabled freedom of expression and technological innovation to flourish in the US. It includes only a placeholder for exceptions and limitations. This raises serious concerns about other countries’ sovereignty and the ability of national governments to set laws and policies to meet their domestic priorities.

Non-Transparent and on the Fast Track

Despite the broad scope and far-reaching implications of the TPP, negotiations for the agreement have taken place behind closed doors and outside of the checks and balances that operate at traditional multilateral treaty-making organizations such as the World Intellectual Property Organization and the World Trade Organization.

Like ACTA, the TPP is being negotiated rapidly with little transparency. Since 2009 when United States Trade Representative Ron Kirk notified the US Congress that President Obama intended to begin talks on TPP, there have been five formal rounds of TPP negotiations in Melbourne, Australia (March 2010), San Francisco, USA (June 2010), Brunei (October 2010), Auckland, New Zealand (December 2010), and Santiago, Chile (February 2011). The negotiating countries hope to complete the TPP agreement by the 19th meeting of the Economic Leaders of APEC, the Asia-Pacific Economic Cooperation forum to be held in Hawaii in November 2011.

In the meantime, further negotiations are planned for March 24 to April 1 (round 6, Singapore), June 20 to 24 (round 7, Vietnam), September 6 to 11 (round 8, San Francisco, USA), and October 24 to 28 (round 9, Lima, Peru).

During the TPP negotiation round in Chile in February 2011, negotiators received strong messages from prominent civil society groups {6} demanding an end to the secrecy that has shielded TPP negotiations from the scrutiny of national lawmakers and the public. Letters addressed to government representatives in Australia {7}, Chile {8}, Malaysia {9}, New Zealand {10} and the US {11} emphasized that both the process and effect of the proposed TPP agreement is deeply undemocratic. TPP negotiators apparently discussed the requests for greater public disclosure during the February 2011 negotiations, but took no action.

Why You Should Care

TPP raises significant concerns about citizens’ privacy, freedom of expression and due process rights, innovation and the future of the Internet’s global infrastructure, and the right of sovereign nations to develop policies and laws that best meet their domestic priorities and enable access to knowledge for the world’s citizens.

The Office of the US Trade Representative is pursuing a TPP agreement that will require signatory counties to adopt heightened copyright protection that advances the agenda of the US entertainment and pharmaceutical industries, but omits the flexibilities and exceptions that protect Internet users and technology innovators.

The TPP will affect countries beyond the nine that are currently involved in negotiations. The new TPP agreement will build upon a 2005 agreement between New Zealand, Chile, Singapore and Brunei Darussalam (the P4 agreement {12}) but will include more extensive provisions on intellectual property and other issues. The TPP will set rules that will likely be adopted initially by the 21 member economies in the Asia-Pacific Economic Cooperation forum {13}. The TPP is being negotiated by nine members of APEC, and negotiators plan to finalize the “TPP concept” at the APEC Economic Leaders meeting in November 2011.

Like ACTA, the TPP Agreement is a plurilateral agreement that will be used to create new heightened global IP enforcement norms. Countries that are not parties to the negotiation will likely be asked to accede to the TPP as a condition of bilateral trade agreements with the US and other TPP members, or evaluated against the TPP’s standards in the annual Special 301 process {14} administered by the Office of the US Trade Representative.

What You Can Do

If you’re in the US, take our Action Alert {15}.

If you’re elsewhere, check out the Action suggestions from TPP Watch {16}.

Key Documents

Leaked US Intellectual Property Rights Chapter {17}, February 2011

Leaked New Zealand IP chapter proposal {18}, February 2011

Leaked Chile IP chapter proposal {19}, February 2011

Leaked comments from New Zealand TPP negotiators {20}, December 2010

Australian Government. Department of Foreign Affairs and Trade Update on Fifth round of TPP negotiations {21}

Remarks at the First Senior US Government Officials Meeting for APEC {22}

US Congressional Research Service report on the TPP {23}, November 2010 (Intellectual Property goals on page 14)

Original P4 (Trans-Pacific Strategic Economic Partnership Agreement) Text {24}

US Industry Demands for TPP

US Chamber of Commerce, MPAA et al. memo on IP demands for the TPP {25}, December 2010

US Industry letter {26}, February 2011

EFF Documents

EFF Analysis of TPP TPM Provisions {27} in leaked US IP chapter

EFF Presentation on Freedom of Expression, Indirect Censorship & Liability for Internet Intermediaries {28}, Santiago Round TPP Stakeholder Forum, February 15 2011

EFF Presentation on TPMs and Civil Rights {29}, Santiago Round TPP Stakeholder Forum, February 15 2011

Civil Society Documents

International Civil Society Requests for Transparency in the TPP negotiations {30} delivered at February 2011 negotiation round

TPP Watch Press Release, February 2011, Letters delivered to negotiators at Chile round calling for transparency {31}

Chilean NGO Derechos Digitales Press Release about IP provision in TPP {32}, February 17 2011

TPP Media Coverage

TechDirt: US Proposals For Secret TPP ‘Son Of ACTA’ Treaty Leaked; Chock Full Of Awful Ideas {33}, March 11 2011

Wall Street Journal: US Seeks Concrete Progress On Regional Integration As APEC Host {34}, March 09 2011

Japan Times: Pitching TPP a tough nut to crack {35}, March 11 2011

ArsTechnica: Son of ACTA: meet the next secret copyright treaty {36}, March 11 2011

Broadband DSL Reports: Behold: The Son Of The ACTA – Draconion, Protectionist IP Laws Hashed Out In Secret {37}, March 11 2011

Rick Shera, LawGeek NZ:  US Wants to Take an Axe to New Zealand IP Law {38}, March 16 2011

Other TPP Resources

TPP Watch {39}

Tech Liberty NZ {40}

Public Citizen’s TPP Page {41}

Public Citizen’s and Third World Network’s Analysis of Leaked NZ Negotiators’ Comments {42}, December 2010

TPP Digest {43}

Inside US Trade’s World Trade Online {44}

KEI TPP Timeline Page {45}

Public Knowledge, Proposed New Copyright Treaty Asks For Tougher Terms Than ACTA {46}

Links:

{1} http://keionline.org/sites/default/files/tpp-10feb2011-us-text-ipr-chapter.pdf

{2} https://www.eff.org/issues/acta

{3} http://www.eff.org/issues/dmca

{4} https://www.eff.org/files/filenode//EFF%20TPP%20TPM%20Analysis_0.pdf

{5} http://www.leychile.cl/Navegar?idNorma=1012827&idParte=&idVersion=2010-05-04

{6} https://tppwatch.files.wordpress.com/2011/02/us-transparency-letter-to-ustr-kirk-021411-final1.pdf

{7} http://www.citizen.org/documents/AFTINET-TPP-letter.pdf

{8} http://www.citizen.org/documents/Chile-TPP-letter.pdf

{9} http://www.citizen.org/documents/Malaysia-TPP-NGO-letter.pdf

{10} http://www.citizen.org/documents/NZ-TPP-letter.pdf

{11} http://www.citizen.org/documents/US-TPP-letter.pdf

{12} http://www.mfat.govt.nz/Trade-and-Economic-Relations/Trade-Relationships-and-Agreements/Trans-Pacific/0-sep-index.php

{13} http://www.apec.org/About-Us/About-APEC/Member-Economies.aspx

{14} http://www.eff.org/deeplinks/2010/04/shaping-ip-laws-not-so-gentle-persuasion-special

{15} https://secure.eff.org/site/Advocacy?cmd=display&page=UserAction&id=471

{16} http://tppwatch.org/what-can-we-do/

{17} http://keionline.org/sites/default/files/tpp-10feb2011-us-text-ipr-chapter.pdf

{18} http://www.citizen.org/documents/NewzealandproposedIPChaptertext.pdf

{19} http://www.citizen.org/documents/ChilePreliminaryConsiderationsforTPPIPChapter.pdf

{20} http://www.citizen.org/documents/NZleakedIPpaper-1.pdf

{21} http://www.dfat.gov.au/fta/tpp/110224-tpp-stakeholder-update-5.html

{22} http://www.state.gov/secretary/rm/2011/03/157940.htm

{23} http://www.fas.org/sgp/crs/row/R40502.pdf

{24} http://www.mfat.govt.nz/Trade-and-Economic-Relations/Trade-Relationships-and-Agreements/Trans-Pacific/0-sep-index.php

{25} http://keionline.org/node/1034

{26} http://www.ipo.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=28502

{27} https://www.eff.org/files/filenode//EFF%20TPP%20TPM%20Analysis_0.pdf

{28} https://www.eff.org/files/filenode//EFF%20presentation%20ISPs%20and%20Freedom%20of%20Expression.pdf

{29} https://www.eff.org/files/filenode//EFF%20presentation%20on%20TPMs%20and%20Civil%20Rights.pdf

{30} http://www.citizen.org/Page.aspx?pid=4768

{31} http://tppwatch.org/2011/02/15/civil-society-demands-end-to-secrecy/

{32} http://www.derechosdigitales.org/en/2011/02/17/propiedad-intelectual-en-el-acuerdo-de-asociacion-trans-pacifico/

{33} http://www.techdirt.com/articles/20110311/00104713434/us-proposals-secret-tpp-son-acta-treaty-leaked-chock-full-awful-ideas.shtml

{34} http://online.wsj.com/article/BT-CO-20110309-709196.html

{35} http://search.japantimes.co.jp/cgi-bin/nn20110311f3.html

{36} http://arstechnica.com/tech-policy/news/2011/03/son-of-acta-meet-the-next-secret-copyright-treaty.ars

{37} http://www.dslreports.com/shownews/Behold-The-Son-Of-The-ACTA-113135?nocomment=1

{38} http://lawgeeknz.posterous.com/us-wants-to-take-an-axe-to-new-zealand-ip-law

{39} http://tppwatch.org/

{40} http://techliberty.org.nz/category/tpp/

{41} http://www.citizen.org/Page.aspx?pid=3129

{42} http://citizen.org/Page.aspx?pid=4685&frcrld=1

{43} http://www.tppdigest.org/index.php?option=com_content&view=article&id=233:malaysia-officially-joins-tpp-talks&catid=1:latest-news

{44} http://insidetrade.com/index.php?option=com_customproperties&view=show&tagId=159&Itemid=375&limitstart=60

{45} http://keionline.org/node/1095

{46} http://www.publicknowledge.org/blog/proposed-new-copyright-treaty-asks-tougher-te

https://www.eff.org/issues/tpp

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