The dangers of the TPP to Mexican legislation regarding intellectual property

by Digital Rights LAC on December 16, 2015

8238799063_7a5592c9e0_oOn November 6 2015, the Mexican Ministry of Economy made public the Spanish version of the Trans Pacific Partnership (TPP), allowing a wider view about the effects that the chapter regarding intellectual property will have on Mexican legislation and how human rights on the digital environment will be affected. One thing is sure: Mexico has a lot more to lose that it has to win with the made agreements.

By: Gisela Pérez de Acha (ONG Derechos Digitales) y Pepe Flores (Red en Defensa de los Derechos Digitales)

TPP’s final draft has confirmed what was previewed on the leaks made by WikiLeaks: the agreement will promote negative changes on copyrights, access to culture or intermediary liability. This implies that local legislation must align to TPP’s dispositions, which in turn will bring significant impact on rights. In Mexico’s case, the consequences  on the matter of intellectual property will be devastating, promoting a scheme based on restrictions and sanctions out of proportion.

For instance, regarding time frames to protect copyrights, it is established on article 18.63 that the protection period of a work is based on a period no less than the lifespan of its author and 70 years after the dead of said author. Currently, Mexico has one of the worst regimens on that regard, protecting works as far as a hundred years after its author’s dead, according to article 29 of the Copyrights Federal Law. Meaning, that if one wish to promote a reform to reduce the current high protection time frame, one cannot do it in lesser terms that the ones that TPP establish as a minimum. This, of course, has serious implications on rights to cultural access.

Regarding exceptions and limitations on copyrights, TPP’s article 18.65 doesn’t impose a catalog of possible exceptions, leaving it open to each country to decide, as long as “it doesn’t attempt against the work’s normal exploitation, interpretation or execution, or fonogram, and it doesn’t cause injustificated damage to the interests of the legitimate interest of the right’s holder.” The interpretation is left open and the part about limitations can be seen as declarative and not mandatory, when it indicates that “each part will seek to achieve the right balance in their Copyright and related Rights system…”. This way, is unlikely that Mexico will change its legislation to favor fair use, since is not obliged by the agreement to procure it.

TPP’s article 18.68 points, regarding the technological protection measures (TPMs), that it could be subject to sanction any person who “knowingly or having reasonable motives to know” evades technological locks that controls access to a work, creates, imports, distributes, sells, rents or supplies services or devices to elude such locks, even “if the conduct (…) doesn’t have a commercially significative end or a different use when it eludes the actual technological measure.” The penalties are: i)criminal proceedings [just in case that a preponderant commercial interest exists], ii) pay damages; iii) pay indemnisations and judicial costs; iv) payment of fines.

Let’s think about geographical restrictions on DVD’s or Blu-Ray’s, or iTunes time limits when we rent a movie: the protection system simply won’t allow to do more. Those locks can be used on software, ebooks, academic articles, among others. Far from beeing a fair system to protect Copyrights, this dispositions are excessive and impedes any other use, even those that we have as consumers and owners of what we buy.

Although TPP points out that “a side might allow that legal procedures and sanctions won’t apply to a library, museum, archive, educational institution or non commercial public broadcaster”, this is reserved for the mexican government to dictate. Meanwhile in countries such as Ecuador it’s being considered to guarantee the legitimate use of protected material by digital rights management (DRM), in Mexico looks difficult for the legislation to take this turn.

On article 424bis of the Mexican Federal Penal Code sanctions are already contemplated to whom for profit and with commercial interest “builds a device or system which end is to deactivate protective electronic devices of a computer program”, with a fine between 250 thousand and 2.8 millions of pesos (approximately between 14 and 165 thousand USD) and a sanction from 3 to 10 years in prison. Other cases of technological protection to books, music or videos, would have to be expanded. Furthermore, fines must be included (but not prison time) to users who try to unlock those “digital locks” on their own belongings.

It is also proposed the tightening of sanctions against infractions to Copyright. On TPP’s article 18.74 is established that the judges must have the power to at least: i) impose preventing measures, including insurance or others that allow the custody of devices and products supposedly involved in a prohibited activity; ii) demand the type of indemnisation applicable to Copyright infringement; iii) demand the payment of legal expenses; and iv) demand the destruction of devices and products that are involved in prohibited activities.

In Mexico there are civil and legal sanctions, but there would be a need to change the fact that article 231 of the Copyright Law already establish that communicate, use, reproduce, store, distribute or sell work protected under Copyright (or its copy) without its titular consent, and with profit in mind deserves a fine between 250, 000 MXN (14 thousand USD) and 2.8 millions MXN (165 thousand USD). This is independent from the civil indemnisation for damages, which cannot be less than 40% of the sell price according to article 216 bis of the same law. In this way, tightening the sanctions against Copyright infringement will make that the quantity of cultural material on the Internet will diminish drastically. All of that paying more that the “damage” supposedly produced; to benefit privates and trying to frighten those who pretend to infringe the rights.

Regarding satellite imagery, TPP proposes on its article 18.79 punishes with jail time and a fine no only “those who produces, modifies or sells systems design to decode satellite signals” but also those who use such signal. This is already legislated in Mexico, but doesn’t include final users. It is punishable by payment of damages (article 145 of the Copyright Federal Law) and between 6 months and 4 years of jail time (article 426 of the Federal Penal Code). With the TPP, the standard is much harsher, because it punishes not only the production of devices that decodes satellite signal but also penalizes the user.

Lastly, the TPP proposes on its article 18.82 a regime of responsibility of intermediaries very similar to that of the DMCA. This is, the implementation of mechanisms of notification and download following the same model without making responsible the intermediary for third party content on their platforms, granting “legal incentives to the Internet Services Providers to cooperate with the owners of the Copyright to dissuade non authorized storage and transmission of material protected by Copyright or, alternatively, take other actions to dissuade unauthorized storage and transmission of material under Copyright.”

To this date, there is nothing regulated about this subject in Mexico. The danger that this presents is that it installs a system that monitors content in charge of private companies, without any control or guarantee regarding Human Rights. There is a background on the country such as the proposal made by senator Federico Döring in 2011 or the Beltrones Law in 2015, that were looking to grant power to the  Mexican Institute of Intellectual Property (IMPI) to ask to the ISP for information about Internet users in case of infringement, as well as the capability to fine intermediaries in case that they refuse to cooperate. A similar legislative reform could be presented with the arrival of the TPP.

In light of this analysis, it is possible to detect that the TPP represents an imminent risk to public life. It not only threatens access to culture on the Internet, but its administrative and penal sanctions may provoke an inhibitor effect that damages freedom of speech. Besides, it’s not practical to elevate punishment by jail time in a country with a penal system oversaturated and where there are other crimes with bigger impact on social life; also to grant private entities -such as the ISP – with more responsibilities and faculties without control mechanisms and accountability.

During the XXII Leaders Summit of the Asia – Pacific Economic Cooperation (APEC) Forum, the twelve nations subscribed to the TPP agreed to sign the agreement on February 4 2016, giving themselves a time frame of two year for the approval from their respectives congress. In Mexico, the Senate is the agency in charge of this last decision – supposedly, to be taken on the second half of 2016- that’s why the discussion about the impact of the agreement on national legislation is not only indispensable, but algo cannot be postponed.

Image: Caelie_Frampton via Flickr