The unbalanced approach to copyright by the TPPA can negatively impact freedom of expression and access to knowledge not only for its members, but also for their neighbors.

 Por Francisco Vera, ONG Derechos Digitales.

“The biggest free trade area in the world”. That is how the TPPA has been described by their 11 negotiating countries. (Canada, United States, Mexico, Peru, Chile, Malaysia, Singapore, Brunei, Australia and New Zealand, plus Japan that will join the agreement soon.) The optimistic tone of the official statements is abundant. The hurry for sealing the agreement, too. But after the leaks of its text and the sixteen negotiation rounds held so far, the enthusiasm seem unjustified.

The official optimism displayed by the negotiating parties doesn’t take in account that the TPPA has the potential of harming human rights such as the freedom of expression and the access to knowledge and information, along with blocking future reform initiatives to copyright rules for the public interests.

Even worse, these consequences don’t affect only to the negotiating countries of this multilateral agreement, but they will have a global impact, with special emphasis in those countries neighboring the agreement parties. The provisions contained in the TPPA will end replacing copyright international standards, already quite high because of the TRIPS agreement.

That is the case of Latin America, where Mexico, Chile and Peru are part of the negotiations of the TPPA. Among the negative effects of the agreement, we can count: the imposition of copyright protection terms longer than international standards, border measures that can affect commerce of intellectual goods in transit to other countries, the blocking of parallel importation through a new importing right, criminalizing circumvention of technological protection measures (TPM) and the establishment of a private notice and takedown regime for internet service and content providers’ liability.

In regards to copyright protection terms, the international standard was set in the Berne Convention: up to 50 years after the author’s death, which already is a very dubious measure to pursue public interest. (Do more years of protection after their death encourage authors to create more and better works?) In this matter, the TPPA raises that term to 70 years, imposing the USA standard (set in the ‘Mickey Mouse Protection Act’) to the rest of the countries.

Regarding border measures, the TPPA can also have a regional impact, because it affect even transiting goods and can harm countries with less demanding intellectual property standards or with exceptions that allows certain uses that the TPPA countries does not. For instance, these measures can affect goods that enter the region through a Peruvian port transiting to Bolivia, impeding this last country the importation of cultural works whose author passed away more than 50 years ago (and, therefore, in Bolivian public domain) but less than 70 years, applying the Peruvian rule to this situation.

Imposing a new importation right can also affect how countries access cultural works. Two cases:

FIRST. If the library of a given country wishes to acquire a book and this book does not exist there or if it has an excessive price, it is possible to manage the importation of the text from other country without the need of a special authorization from the rightsholder, because the right to control the distribution of a cultural work ends in the first sale. Under the TPPA, this library should get a special authorization (and most times, pay for it) to import the book.

SECOND. Between the many advantages of internet, a person can buy and sell goods in a global scale. Different services and internet companies offer the opportunity to resell used goods to other people, creating an important second hand goods market. Imposing this new importation right or denying the international exhaustion of rights in the way the TPPA wants to impose, will affect this market and, how we will see, follows the trend of limiting owners’ control over books, discs and other works that they have acquired.

The Technological Protection Measures provisions, from we can see in leaked texts and what can be drawn from Free Trade Agreements signed by the United States with other countries, are all intended to strictly punish any form of circumvention of such (technological protection) measures. In other words, unlock a cell phone to use it with a different operator, rip a DVD to play it in another device, will be even criminally sanctioned. This goes far beyond the international standards on the matter and insists on taking away users rights and freedoms.

But there is even more. One of the most polemical issues is the establishing of a notice and takedown system of internet contents that infringes copyright. As a principle, guaranteeing some ‘safe harbors’ to service providers from copyright liability is a good idea. However, the United States copyright system makes these service providers liable of copyright infringement with a mere private notification, which are now being sent in a massive and uncontrolled way. This negatively affects freedom of expression by giving incentives only to take down content and not to restore them before false or wrong claims.

All of these threats make it clear that the TPPA is driven by a totally unbalanced perspective of copyrights, only considering the interests of the content industry. The only leaked proposal that seems to point in the right direction, was strongly criticized by experts from all over the world, because of its reliance on the “three-step rule”, that allows for implementing exceptions and limitations in a very narrow way, in too specific circumstances and could end affecting public interests in this matter.

The TPPA’s biased approach to these issues comes with huge costs, because it will affect in a negative and disproportionate way human rights like Freedom of Expression and Access to Knowledge, along with creating obstacles for the development of the TPPA parties, because this situation will not create any advantage for most of them that lacks a strong content industry. Moreover, since this treaty will be signed by more than 11 countries and will be open to new members, the TPPA will end up substituting international venues such as WTO and WIPO, where intellectual property issues are now being discussed with a slightly more balanced approach.

All of these threats are even worsened with a negotiation that lacks transparency and participation from citizens and experts. A final balance that leaves no room for optimism and only reassure the idea that the TPPA is a treaty that will end up affecting human rights in a global scale.

Francisco J. Vera Hott  es director de proyectos de ONG Derechos Digitales.
E-mail: francisco (at) derechosdigitales.org