WikiLeaks Publishes IP Chapter of Secret Trade Agreement

Photo credit: Juan Camilo Bernal/
Photo credit: Juan Camilo Bernal/

Like its forerunner the Anti-Counterfeiting Trade Agreement (ACTA), TPP is being negotiated in secret. ACTA was eventually abandoned following extensive public protests in Europe and the subsequent refusal of the European Parliament to endorse it. The public protests largely focused on what was considered to be excessive copyright enforcement on the internet, while the political objections concentrated on its secrecy. 

"The European Parliament vote will have sent an important signal to foreign governments and will act as a counterbalance to the ability of the US government to use ACTA for the purposes of its own industries," wrote IPtegrity's Monica Horten in A Copyright Masquerade (which provides a detailed analysis of the progress of ACTA within Europe). Now there are concerns that TPP is being used to invoke ACTA-like IP enforcement without any involvement from Europe.

It will be a few days before lawyers are able to fully analyze and comment on the 90+ pages of the chapter, but initial comments are already appearing. In general, executive politicians and multi-nationals strongly support the agreement, while civil liberties groups oppose it. The Sydney Morning Herald quotes Australian prime minister Tony Abbott: "there’s always horse-trading in these negotiations, but in the end ... everyone is better off."

It also quotes Matthew Rimmer, an expert in intellectual property law, who described the IP chapter as "a Christmas wish-list for major corporations" with "little focus on the rights and interests of consumers, let alone broader community interests."

In the US, the EFF has commented very strongly. It confirms "long-standing suspicions about the harm the agreement could do to users’ rights and a free and open Internet... the TPP text we’ve seen today reflects a terrible but unsurprising truth: an agreement negotiated in near-total secrecy, including corporations but excluding the public, comes out as an anti-user wish list of industry-friendly policies."

US politicians are also becoming concerned about both the secrecy of the negotiations and the apparent intention of President Obama to fast track the agreement. Yesterday, 151 House Democrats wrote to the president and voiced their objection. "We write to express our serious concern with the ongoing negotiations over the Trans-Pacific Partnership (TPP) Free Trade Agreement (FTA), a potential agreement of tremendous consequence for our country. Specifically, we remain deeply troubled by the continued lack of adequate congressional consultation in many areas of the proposed pact that deeply implicates Congress’ constitutional and domestic policy authorities."

The letter expresses concern that the combination of secrecy and the Fast Track process (which gives the president the authority to negotiate trade agreements and leaves Congress with the ability to approve or reject but not amend) usurps congressional responsibility. "Twentieth Century 'Fast Track' is simply not appropriate for 21st Century agreements and must be replaced. The United States cannot afford another trade agreement that replicates the mistakes of the past. We can and must do better."

Europe has not been involved in TPP, and there has been little discussion on it. However, at the beginning of this year a new EU/US trade agreement was announced: the Transatlantic Trade and Investment Partnership (TTIP). Following Edward Snowden's revelations on the extent of NSA spying, there has been growing concern among European politicians (excluding the UK whose own spy agency GCHQ works very closely with the NSA) on whether and how this should continue.

WikiLeaks noticeably commented, "The TPP is the forerunner to the equally secret US-EU pact TTIP (Transatlantic Trade and Investment Partnership), for which President Obama initiated US-EU negotiations in January 2013. Together, the TPP and TTIP will cover more than 60 per cent of global GDP.)  And of course together, the TPP and TTIP will provide those very IP conditions and potentially stronger enforcements that were rejected in ACTA.

Monica Horten has looked at the draft text, and warns that it contains a whole section on ISP liability for copyrighted content. This was one of the primary battlegrounds between the US and the EU in ACTA. TPP "contains a whole section on this topic," she told Infosecurity, "including a draft notice and takedown provision. It currently looks to me like the Canadians are trying to get a provision similar to the EU." The EU wanted to encourage the co-operation of the ISPs; the US wanted to enforce it by law. "The US proposal would be much looser and with fewer if any safeguards for ISPs or users or content providers," she continued.

The next round of TPP negotiations are due to be held in Salt Lake City, Utah, next week. The leaked IP chapter is annotated with many differences and positions held by the different participants – such as the Canadian position noted by Horten. There would appear to be much still to be negotiated.

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