Blah-humbug: Leaked Trade Agreement Shows (Surprise!) U.S. Looking Out for Its Interests

Last week, the website WikiLeaks published the confidential draft text of the intellectual property (IP) chapter for the Trans-Pacific Partnership (TPP) Agreement, a trade agreement being negotiated by 12 countries in and around the Asia-Pacific region. Soon after, several public advocacy groups -- Public Citizen, Electronic Frontier Foundation (EFF) and Fight for the Future -- began hyperventilating at the prospect of countries actually agreeing to protect IP rights and immediately started decrying the draft agreement as an "anti-user wish list of industry-friendly policies" that would be "profoundly bad for innovation" and "limit Internet freedom."

The reality is far more prosaic, as the chapter does little more than demonstrate that the United States and its trading partners are in the process of negotiating an agreement, where little has been decided.

The leaked chapter includes many topics -- extended copyright terms (for non-U.S. nations), patents and public health, trademarks and domain names, and digital copyright protections. Much of the hoopla surrounds this last issue; Bruce Kilic, an IP lawyer with Public Citizen states, "The WikiLeaks text also features Hollywood and recording industry inspired proposals -- think about the SOPA debacle -- to limit Internet freedom and access to educational materials, to force Internet providers to act as copyright enforcers and to cut off people's Internet access."

However, in comparing the two proposals on the table -- one from the Canadians and one from the United States, with the other 10 nations opposing and supporting various aspects -- it is clear this is not the case. First, it is important to note that neither proposal would be a change to U.S. law, and that is where many of the anti-IP rabble rousers are wrong. At most, the U.S. proposal in the TPP seeks to create an international standard for ISP liability that elevates the laws of our trading partners to the U.S. level, but does not ask the United States to change its law.

Moreover, in fact, the U.S. proposal specifically calls for legal incentives to encourage ISPs to cooperate with copyright owners to deter the unauthorized storage and transmission of copyright materials. In addition, the text does not require ISPs to block access, but instead asks that they take reasonable steps: "Court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location. [emphasis added]" Essentially, this means that courts cannot make ISPs financially liable for copyright infringement by their users, but can ask them to take steps to block access. Is this really so much of a stretch? Both proposals outline the same basic limitations on liability for ISPs that is found in the Digital Millennium Copyright Act (DMCA).

The Canadian proposal, admittedly more lenient than that of the United States (somewhat unsurprising, considering the United States Trade Representative has listed Canada on its Special 301 Report for lax IP policies) also specifically states that the parties in the TPP are free to require ISPs to block access to infringing websites in accordance with their own national laws: "This Article shall not affect the possibility of a court or administrative authority, in accordance with Parties' legal systems, or requiring the Internet service provider to terminate or prevent an infringement."* This means that the United States, or any other TPP party, is still free to do what it wants with regard to developing laws blocking access to infringing websites.

Ultimately, the draft text demonstrates that the 12 countries in the TPP still are in discussion over how much IP laws will be harmonized in the Asia-Pacific region. But, it is important to note that the differences are much more nuanced than many of the alarmists would lead you to believe -- each country is trying to get the agreement to align best with its existing policies. The United States simply wishes to elevate the IP standards of its trading partners, primarily so that U.S. IP rights holders are fairly compensated around the world. And this, by the way, is in the interests of American consumers and workers, given that we produce more digital content than any other TPP nation and have the most to lose from those who download illegally. The idea that this tramples on the freedom of consumers or the internet is, at best, unfounded, and at worst, a poorly executed form of scare tactics from anti-copyright idealists.

*Note: It is the author's belief that the sentence is meant to read: This Article shall not affect the possibility of a court or administrative authority, in accordance with Parties' legal systems, of requiring the Internet service provider to terminate or prevent an infringement." However, the sentence was copied as is from the draft text for the purposes of accuracy.