Friday, October 16, 2015

The Final Leaked TPP Text Is All That We Feared

Electronic Frontier Foundation
October 9, 2015 | By Jeremy Malcolm


The Final Leaked TPP Text Is All That We Feared

Today's release by Wikileaks of what is believed to be the current and essentially final version of the intellectual property (IP) chapter (https://www.eff.org/issues/intellectual-property/the-term) of the Trans-Pacific Partnership (TPP) (https://www.eff.org/issues/tpp) confirms our worst fears about the agreement, and dashes the few hopes that we held out that its most onerous provisions wouldn't survive to the end of the negotiations.

Since we now have the agreed text, we'll be including some paragraph references that you can cross-reference for yourself—but be aware that some of them contain placeholders like “x” that may change in the cleaned-up text. Also, our analysis here is limited to the copyright and Internet-related provisions of the chapter, but analyses of the impacts of other parts of the chapter have been published by Wikileaks (https://wikileaks.org/tpp-ip3/) and others.

Quite honestly there are no parts of this agreement that are positively good for users. Of course, that doesn't mean that it's not improved over the earlier, horrendous demands of the U.S. negotiators. Some of the areas in which countries rightly pushed back against the U.S., and which are reflected in the final text are:

1. The exhaustion of rights provision (QQ.A.11) that upholds the first sale doctrine of U.S. law, preventing copyright owners from extending their control over the resale of copyright works once they have first been placed in the market. In particular, this makes parallel importation of cheaper versions of copyright works lawful—and complementing this is an explicit authorization of devices that bypass region-coding on physical copies of such works (QQ.G.10, though this does not extend to bypassing geoblocking of streaming services).
A thoroughly-misguided provision that would have extended copyright protection to temporary or "buffer" copies in a computer system was one of the earliest rightsholder demands dropped by the USTR, and rightfully so, given the damage this would have wreaked to tech companies and users alike.

2. But we have struggled to come up with more than two positive points about the TPP, and even then the absence of these tragic mistakes is a pretty poor example of a positive point. If you look for provisions in the TPP that actually afford new benefits to users, rather than to large, rights-holding corporations, you will look in vain. The TPP is the archetype of an agreement that exists only for the benefit of the entitled, politically powerfully lobbyists who have pushed it through to completion over the last eight years.

There is nothing in here for users and innovators to support, and much for us to fear—the ratcheting up of the copyright term across the Pacific rim, the punitive sanctions for DRM circumvention, and the full frontal attack on hackers and journalists in the trade secrets provision, just to mention three. This latest leak has confirmed our greatest fears—and strengthened our resolve to kill this agreement for good once it reaches Congress.

Read more at: https://www.eff.org/deeplinks/2015/10/final-leaked-tpp-text-all-we-feared
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