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Trans-Pacific Partnership – similar to, but stronger than, SOPA and ACTA

16 November 2013

More detailed academic analysis of the leaked intellectual property chapter of the secret Trans-Pacific Partnership trade agreement is emerging following the leak of the 95-page document by WikiLeaks on Wednesday. Comparisons with both SOPA and ACTA are being made.

SOPA (Stop Online Piracy Act) and ACTA (Anti-Counterfeiting Trade Agreement) were halted largely by popular activism. The common factor in both was the potential for copyright owners to force their will on the internet. Two of the key issues were to make ISPs liable for infringing content, and the ability to suspend the internet accounts of repeat infringers. A further criticism of ACTA is that it was negotiated in secret, and both the public and the national parliaments expected to simply accept the deal.

Analysis of the TPP IP chapter provided by WikiLeaks shows that it is following a similar, but potentially more severe, path to that of ACTA. "Much of the TPP intellectual property chapter looks like a cut-and-paste from ACTA," comments Monica Horten, a visiting fellow at the London School of Economics & Political Science. "Certainly, it brings in similar secondary liability and criminal measures that were in ACTA." Secondary liability within copyright is indirect infringement. It would mean that ISPs and search engines can be held liable simply because they provide access to copyrighted works. It is what Horten describes as 'the Holy Grail for Hollywood and the Motion Picture Association of America (MPAA).' "It’s what they tried to do with the EU Telecoms Package, as well as in ACTA and in SOPA. It is Hollywood’s Holy Grail for online copyright enforcement," she says.

Within the TPP, the US government is seeking to make ISPs primarily responsible for removing copyrighted content from the internet. The US is supported by Australia. Enforcement would be achieved, says Horten, by "disconnection of users (termination of Internet accounts), blocking and disabling of content, and even some level of monitoring obligation. The US/Australian proposal seeks to include search engines, linking sites," and possibly even cloud computing services. "It sounds to me like a description of a 3 strikes regime," she said.

But it is not yet a done deal. "The Canadians oppose it," she added, "and Canada seems to be joined at least partially by an assortment that includes Mexico and Malaysia."

Michael Geist, a Canadian law professor at the University of Ottawa, describes it as 'a battle over internet service provider liability' which "is shaping up to be a battle between Canada and the U.S., with countries lining up either in favor of a general notification obligation (Canada) or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking (U.S.)."

The US proposals also include a national privacy law override: "Each Party," proposes the TPP, "shall establish an administrative or judicial procedure enabling copyright owners who have given effective notification of claimed infringement to obtain expeditiously from a service provider information in its possession identifying the alleged infringer." That is, on request, ISPs would be obligated to provide details on their customers. This, says Geist, "would require an overhaul of Canadian copyright law and potential changes to privacy law."

"Of course," says Horten, "the United States was forced to back down over this issue in ACTA. At stake here is whether Canada can muster the support  for a  repeat."

Meanwhile, 80 US law professors have written to president Obama, Congress and Ambassador Michael Froman to object to the secrecy of the TPP. "We take no position on the particular proposals," they say, but warn that the "TPP is following a process even more secretive than ACTA, which is amplifying public distrust and creating an environment conducive to an unbalanced and indefensible final product." There is a better way, they say. "Rather than repeating the failures of ACTA, the United States should be following the example of the last successful international intellectual property agreement negotiation: the recently signed and broadly praised Marrakesh Treaty." The Marrakesh Treaty had been negotiated 'with unprecedented transparency for an international agreement.'

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Cloud Computing  •  Compliance and Policy  •  Industry News  •  Internet and Network Security


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