United States Continues to Push for Strict Intellectual Property Rules in the Trans-Pacific Partnership Agreement - Fordham Intellectual Property, Media & Entertainment Law Journal
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United States Continues to Push for Strict Intellectual Property Rules in the Trans-Pacific Partnership Agreement

United States Continues to Push for Strict Intellectual Property Rules in the Trans-Pacific Partnership Agreement

Forbes reported last week that Wikileaks has recently published a draft of the intellectual property chapter of the Trans-Pacific Partnership (TPP) Agreement revealing the United States’ efforts to enforce “draconian” penalties for copyright infringement. The Office of the United States Trade Representative describes the agreement as a “21st century trade agreement” that will increase economic opportunities for American businesses and workers in the markets of the eleven participating Pacific Rim countries: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam.

A previous draft, leaked in November 2013, revealed that the proposal included provisions to extend patents beyond 20 years and more aggressive measures to prevent hackers from infringing copyrighted material. At that point, Wikileaks founder Julian Assange opined that “If instituted, the TPP’s intellectual property regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons,” according to The Guardian.

The most recent leak demonstrates that the United States is pushing for the inclusion of features from the Digital Millennium Copyright Act that could require Internet Service Providers, and further, anyone providing Internet services, to face liability if they fail to remove infringing material where it appears. According to Forbes, such a provision would mean that even a coffee shop that provides Internet access to customers could be held liable for copyright infringement, creating a much harsher regime than we have seen before.

The leaked draft, dated May 2014, also shows that the United States is pushing for criminal sanctions for copyright infringement, even where such infringement is not serving a commercial purpose. Such a broad regime could potentially generate abuse, according to the Electronic Frontier Foundation. The EFF also reports that this draft criminalizes unauthorized access or disclosure of trade secrets using a computer system. This would be a significant departure from the common law tradition of handling trade secret issues in the civil, rather than criminal courts.

Whereas the November 2013 draft showed strong international opposition to many of the more restrictive United States proposals, the most recent draft shows that only Canada remains as a strong opponent of implementing the harsher rules. According to Forbes, this shift in position could be due to a new system for implementation included in the latest draft. A longer timeline for implementing the agreement could allow current governments to defer responsibility to subsequent government regimes. James Love, of Knowledge Ecology International described this tradeoff to Forbes as “a short-term benefit in exchange for a long term harm.”

The draft chapter includes many provisions that, if implemented, could introduce potential for abuse due to their sweeping nature and failure to include exceptions for legitimate purposes such as whistle blowing and journalism, according to Forbes. Although the TPP negotiations are being conducted in secret, groups such as Just Foreign Policy have pledged to donate large sums to Wikileaks in exchange for leaking the full text of any draft agreements, according to The Guardian. The next round of TPP negotiations is planned for the end of October in Australia. It remains to be seen whether further drafts of the agreement will be leaked and, if so, what changes will be made in the negotiation process.

Ashley Whelan

Ashley Whelan is a second year law student at Fordham University School of Law and a staff member on the IPLJ. She holds a degree in Communication Studies from Fairleigh Dickinson University, and is very interested in the continuing developments in entertainment and intellectual property law.