TPP: Chapter By Chapter Analysis
After years of secret negotiations, the full text of the Trans-Pacific Partnership was finally released last night. Civil society is going through the text with a fine-toothed comb to uncover provisions that threaten the rights, freedoms and the well-being of the participating countries’ citizens. The following is a compendium of the analysis we have found to date. We will be updating as regularly as more details become available.
Chapter 9: Investor-State Dispute Settlement
The most shocking revelation from today’s release is how the TPP’s Investment chapter defines “intellectual property” as an asset that can be subject to the investor-state dispute settlement (ISDS) process. What this means is that companies could sue any of the TPP nations for introducing rules that they allege harm their right to exploit their copyright interests—such as new rights to use copyrighted works for some public interest purpose. A good example of this might be a country wishing to limit civil penalties for copyright infringement of orphan works, which are works whose authors are deceased or are nowhere to be found.
While it was earlier rumored that IP disputes may have been excluded from the ISDS process, or at least that there might be some safeguards included, the Investment chapter reinforces our fear that new, democratically-decided user protections within copyright can be attacked by an ISDS challenge. This is far from just a hypothetical threat. A good example of just how far companies might go in enforcing their claimed rights using ISDS is the claim brought by Philip Morris against Australia under a similar free trade agreement, alleging that its trademark rights were infringed by the country’s cigarette plain packaging laws. This ISDS mechanism can be characterized as a tool for private industry to directly undermine democracy and any public interest rule.
No matter what else is in the Trans-Pacific Partnership, this section makes it bad for people everywhere. It allows companies to sue governments — but not the other way around. These legally-binding challenges are decided by arbitrators hired for that case only, and investors have every reason to stack the cases with as many standards violations as they’d like. Intellectual property is just one of the many things that investors can bring suits over, but we could soon see cases of investors suing governments because they think punishments and rewards for copyright or trademark violations aren’t enough to satisfy them. Decisions that impact the future of the Internet should never be made in secretive international tribunals — especially not ad hoc ones.
Chapter 12: Temporary Entry for Business Persons
The section of the deal on Canada Temporary Entry for Business Persons confirms fears that the deal allows foreign companies to bring in an unlimited number of temporary foreign workers in certain broad occupational categories without work permits, bypassing all certification requirements and rules to protect Canadian jobs. This will continue to distort the local labour market and to displace Canadians and to drive down wages.
“We’ve already seen that labour mobility provisions in other trade agreements have allowed corporations to bypass Canadian workers and to undermine wages in Alberta,” M Alberta Federation of Labour president Gil McGowan said. “The TPP just means that employers will be able to bring in more exploitable workers with fewer rights from more countries.”
Chapter 14: Electronic Commerce
Second to the IP chapter and sweeping menace that is the Investment chapter, the E-Commerce chapter has the next most serious ramifications for users, and it mirrors the same chapter of the Trade in Services Agreement (TISA) in many ways.
The supposed benefit of this chapter most touted by big tech companies is that it restricts the use of data localization laws, which are laws that require companies to host servers within a country’s borders, or prohibit them from transferring certain data overseas (in Articles 14.11 and 14.13). Although we generally agree that data localization is an ineffective approach to the protection of personal data, a trade agreement is the wrong place for a sweeping prohibition of such practices. For particularly sensitive user data, regulating cross-border transfer of that data or its storage on vulnerable overseas servers may be a valid policy option. The E-Commerce chapter does not prohibit recourse to this option altogether, but imposes a strict test that such measures must not amount to “arbitrary or unjustifiable discrimination or a disguised restriction on trade”—a test that would be applied by an investment court, not by a data protection authority or human rights tribunal.
This prioritization of trade interests over privacy rights pervades the rest of the chapter also. For example, Article 14.8 on Personal Information Protection contains a footnote providing that “a Party may comply with the obligation in this paragraph by … laws that provide for the enforcement of voluntary undertakings by enterprises relating to privacy.” In other words, it is perfectly okay for countries to allow online advertising networks and data brokers to write their own rules for personal data protection, provided that the law holds them to these weak and self-serving standards. To characterize this as establishing any standard of data protection at all for the TPP countries is laughable; on the contrary, it legitimizes the lack of effective protection and fails to raise the bar even an inch.
Worse than that, paragraph 5 of Article 14.8 goes further by encouraging the parties to develop mechanisms to promote compatibility between their various privacy and data protection regimes. What this means is that parties with comprehensive personal data protection laws are encouraged to treat the weak, voluntary arrangements of other parties as in some way equivalent to their own, in order to streamline the exchange of data by these parties across borders. This is the same approach that was embodied in the EU-US Safe Harbor Agreement, that was thrown out by the European Court of Justice this month.
Similarly, the provision on net neutrality in Article 14.10 is so weak as to be meaningless. Rather than establishing any sort of enforceable obligation, the parties merely “recognise the benefits” of the access and use of services and applications of a consumer’s choice, the connection of end-user devices of the consumer’s choice, and the availability of information on network management practices. To the extent that the TPP countries can falsely point to this provision as “addressing” net neutrality, it may actually impede the development of stronger, more meaningful global standards.
The provision on spam control in Article 14.14 is similarly empty. It requires “measures regarding unsolicited commercial electronic messages” to be taken, but offers the weakest possible guidance on what these should be. The measures may include requirements on suppliers to allow users to opt out from receipt of messages, or require opt-in consent, or… “otherwise provide for the minimisation” of such messages. In sum, then, by backing away from a meaningful commitment to do anything, it requires nothing substantive at all. If anything, this is a signal that trade agreements are really not a useful venue for addressing the spam problem.
Article 14.17 prohibits countries from requiring the disclosure of source code of mass-market software or products containing such software. This cuts off one possible avenue that, to take one example, has recently been proposed to the U.S. Federal Communications Commission for addressing the dire state of security in consumer-level routers by a panel of 260 cybersecurity experts. This could also inhibit countries from addressing other software security incidents for which access to the source code of the software is required.
Chapter 18: Intellectual Property
Article 18.26: Term of Protection for Trademarks
Increases the minimum protection for trademarks to 10 years, forcing countries to follow the U.S. model on this rather than make their own trademark policy based on the public interest. This will limit technological innovation and could curtail affordable access to medicines or other basic necessities.
Article 18.37: Patentable Subject Matter
Allows for the patenting of “new methods of using a known product,” which essentially allows for unlimited patents from Pharmaceutical companies and will block affordable access to medicines and medical procedures and prevent innovation of better and more affordable healthcare procedures.
Article 18:28: Domain Names
This undermines anonymous online expression by requiring governments to keep a public database of real names and addresses associated with country code top level domain names, (such as .us, .au, .ca, etc). This is dangerous especially for the ability of opposition groups in repressive countries to voice their concerns online without fear of violent retribution.
Article 18.63: Term of Protection for Copyright and related Rights
This is one of the most egregious pieces of the deal. It forces the most draconian parts of the U.S.’s broken copyright system on the rest of the world without expanding protections for fair use and free speech. This section requires countries to enforce copyright until 70 years after the creator’s death. This will keep an enormous amount of information, art, and creativity out of the public domain for decades longer than necessary, and allow for governments to abuse copyright laws to censor online content at will, since so much of it will be copyrighted for so long.
Article 18.68: Technological Protection Measures
This section attempts to make it a crime to circumvent any “Digital Rights Management” (DRM) locks on a device, even if you own it. It could criminalize people who unlock their phones in order to use accessibility software, for example, or make it illegal to circumvent DRM on a computer in order to use Linux.
Article 18.69: Rights Management Information
This section criminalizes basic activities that involve removing a Rights Management marker, even if it’s done in the process of creating something totally legal. For example, cropping a photo that has a watermark on it in order to use it as part of a fair use creation or as part of a political protest. And yes, that does include if you give credit elsewhere (like the description of a YouTube video).
Article 18.78: Trade Secrets
Criminalizes the “unauthorized and willful disclosure of a trade secret including via a computer system.” This is clearly intended to stifle whistleblowers and journalism covering the documents they expose – it could criminalize, for example, The Guardian’s reporting on the documents they received from Edward Snowden.
Section J: Internet Service Providers
This is one of the worst sections that impacts the openness of the Internet. This section requires Internet Service Providers to play “copyright cops” and assist in the enforcement of copyright takedown requests – but it does not require countries to have a system for counter-notices, so a U.S company could order a website to be taken down in another country, and there would be no way for the person running that website to refute their claims if, say, it was a political criticism website using copyrighted content in a manner consistent with fair use.
Section J makes it so ISPs are not liable for any wrongdoing when they take down content – incentivizing them to err on the side of copyright holders rather than on the side of free speech.
[Cover photo: AFGE]