Trans-Pacific Partnership Would Harm User Rights and the Commons

The final text of the Trans-Pacific Partnership (TPP) was released earlier this month. The gigantic agreement contains sweeping provisions regarding environmental regulation, pharmaceutical procurement, intellectual property, labor standards, food safety, and many other things. If adopted, it would be the most sweeping expansion of international restrictions on copyright in over two decades. Over the last five years, the TPP has been developed and negotiated in secret. With the text now locked down, participating governments will decide whether to ratify it.

The TPP is a direct threat to the public interest and the commons. It downplays the importance of the public domain and exceptions and limitations, increases the term of copyright protection, and demands harsh infringement penalties.

The TPP must be rejected.

In our initial analysis, we examine several issues that would be detrimental to the public domain, creativity and sharing, and user rights in the digital age.

• 20-year copyright term extension is unnecessary and unwarranted: The agreement requires member nations to increase their term of copyright protection to life of the authors plus 70 years. Six of the twelve participating countries will have to increase their copyright terms 20 years past the baseline required by existing international treaties.

• The mention of the public domain is lip service, at best: Text has been removed which more actively supported the public domain as a key policy objective.

• Enforcement provisions are mandatory, while exceptions and limitations are optional: Instead of securing mandatory limitations and exceptions for uses of copyrighted works under TPP, all of the provisions that recognize the rights of the public are voluntary, whereas almost everything that benefits rightsholders is binding.

• Potentially drastic infringement penalties, even for non-commercial sharing: The agreement allows for infringement penalties that are disproportionate to harm, providing for the possibility of imprisonment and excessive monetary fines for lesser infringements.

• Criminal penalties for circumventing digital rights management on works: The agreement adopts a mechanism that would prohibit the circumvention of technological protection measures (DRM) on works, and treats this type of violation as a separate offense regardless of any copyright infringing activity on the underlying content.

• Investor-state dispute settlement mechanism may be leveraged for intellectual property claims: Copyrighted materials can be subject to the investor-state dispute settlement (ISDS) mechanism, meaning that a private company could bring a lawsuit against a TPP country if that country adopts a law that the company claims would harm its right to exploit its copyright interest.

Statement from Creative Commons on copyright-related aspects of the TPP