The Trans-Pacific Partnership & Modern Copyright Law

Posted By: Justin McKay


Jay_treatyIf you haven’t noticed, there has been an increasing amount of commentary on the internet about the Trans-Pacific Partnership (TPP) ever since Wikileaks released the negotiated draft text of the intellectual property chapter on November 13, 2013. Unfortunately, most of that commentary contains suggestive and alarming language without many (or any) references to the text to substantiate their doomsday attitude. So, I decided to take a look at the text. Below are my findings:

What is the TPP?

Simply put, it is a trade agreement aimed at 21st century trade issues, created in 2005, and originally known as the Trans-Pacific Strategic Economic Partnership Agreement between Brunei, Chile, New Zealand, and Singapore. The United States joined negotiations for an expanded agreement in 2008, with many other countries joining in 2010, including Australia, Canada, Japan, and Mexico.

Since 2010, the agreement has undergone 19 rounds of negotiations. Interestingly, each country’s positions are documented in the leak (see below for an example).

What’s the hype?

The biggest sensible issue seems to be that the negotiations were kept secret. It’s an issue because the people who have a stake in the outcome (ISPs, OSPs, and internet users around the world) are shielded from input and shielded from the negotiation process.

As a secondary issue, ever since SOPA was crushed, the internet community seems to be keenly aware of anything that might change the current functionality of the internet. Naturally, people are going to freak out when new copyright laws are introduced on the scene. The problem is, most people probably won’t / don’t know how / can’t sift through 96 pages of dense legal writing.

What does it actually say and what does it mean?

Without writing a treatise on the TPP, here is some analysis:

Basic Copyrights. Article QQ.G.1 on Page 49:

Each Party shall provide that authors, performers, and produces of phonograms have the right to authorize or prohibit all reproductions of the works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form)[.] [I]t shall be a matter for national legislation to determine exceptions and limitations under which the right may be exercised.”

No big deal on its face. It’s basically the same as current U.S. Copyright law: Authors have the right to control the reproduction of their works. The interesting part is, the footnotes say that countries CL/NZ/MY/BN and JP propose a clarification that “[lawful] temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process” shouldn’t create liability.

This is great news because it reflects an intelligent understanding of how computers work. In the past, software was protected by copyright law if it was original and fixed in a tangible medium of expression. Software code was literally registered with the copyright office as a literary work. The problem was that computers, by their very nature, have to make copies of software in RAM to function. So, just by turning on your computer and booting up the software, you would technically be liable for copyright infringement. In response, CONTU added section 117(a) to the Copyright Act, which made it so that copies made as an “essential step” in the utilization of a computer program is not an infringement. Anyway, it’s good that someone in the negotiations is using their noggin.

Anti-Circumvention. Article QQ.G.10 on page 53:

In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who knowingly, or having reasonable grounds to know, circumvents without authority or authorization any effective technological measure that controls access to a protected work; or manufactures, imports, distributes, offers, for sale or rental to the public, provides, or otherwise traffics in devices, products or components, or offers to the public or provides services that: [have little purpose other than to circumvent technological measures] shall be liable […].”

Again, this is fine. We already have a similar law in the United States – it’s 17 U.S.C 1201 and it says practically the same thing: “No person shall circumvent a technological measure that effectively controls access to [a protected work].”

Safe Harbor. Article QQ.I.1 on page 84:

Each Party shall limit the liability of, or the availability of remedies against, internet service providers when acting as intermediaries, for infringement of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services.”

More of the same. 17 U.S.C. 512 (a) says: “A service provider shall not be liable […] for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for [etc.].”


The point I’m trying to make is that people are almost freaking out over nothing. With respect to Copyrights, the TPP doesn’t seem to offer anything new.

The funny thing is that piracy is out of control, but there’s not much anyone can do about it:

  • Historically, ISPs have been unwilling to bear the costs of enforcing copyrights and will likely continue to not do so.
  • Even if these countries abide by the TPP, infringing material will still be available in countries not following the TPP.
  • The decentralized nature of the internet makes it practically impossible to prevent unauthorized access to copyrighted material.
  • Even if you discerned the identity of infringers, it is likely not worth the cost of pursuing the lawsuit (e.g. Tenenanbaum and Thomas will never be able to pay the judgments against them, so was it worth it?).

Closing Note: The TPP is still being negotiated. The above references to the text probably wont be the law in its final form.


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