What the Top-Secret TPP Talks Mean for the Future of the Internet and Democracy


It's always the most sinister, and yet cowardly things that live in the dark.

For decades, corporations and state officials have continued to scheme through dozens of international deals to capture the democratic process from the public. The most glaring avenue for this corporate capture has been in trade agreements. Trade officials are now secretly meeting at the Delta Hotel in downtown Ottawa over the latest and most threatening of these agreements: the Trans-Pacific Partnership (TPP).

The TPP is a massive deal between 12 Pacific countries that could have a resounding impact on hundreds of millions of lives. Like similar agreements, it has been negotiated at expensive, luxurious hotels around the world, where trade delegates secretly meet to make high-stakes deals between their nations. Their public statements and press releases may tout the public benefits of these agreements, but the trade ministers' primary goal is to appease private interests.

We are only able to get a good clear look at what is in the agreement when drafts of the text are leaked. In the fall of last year, there was a leak of one of the most alarming chapters in TPP. It contained extreme copyright enforcement provisions that could lead to users getting censored, fined, and even jailed over completely reasonable activities such as remixing and sharing content for non-commercial purposes.

It included copyright lengths that would last over 140 years, increasingly locking up our culture and making it illegal to access and remix. It revealed some countries' proposals on digital rights management (DRM), which are restrictions on devices and content so manufacturers can control what users can do even after they've bought them. It also had laws that would force Internet service providers and online services to spy on and police their users for copyright infringement. Under such policies, users can have their content removed or blocked, or even have their accounts suspended without so much a judge determining whether what they've done was illegal.

Major film studios, publishers, music labels, and the rest of the copyright industries have been doing everything they can to expand its control over creative works. Through intense lobbying efforts around the world, they've been able to get laws that expand copyright restrictions. In addition to targeting domestic policies, their lobbyists concentrate on inserting these kinds of industry-friendly provisions into trade agreements.

But why trade agreements? It's because of existing norms around trade negotiations: officials can get away with keeping trade negotiations extremely secretive, bypassing all the democratic safeguards that exist in most democratic lawmaking systems. While the public is completely denied access to the draft agreement, copyright lobbyists can influence its text and even see the draft language by participating in special advisory committees. If they can get what they want in a trade deal, countries become obligated to enact new draconian copyright laws to comply with it domestically. That means that even if a country already has an existing law that has been transparently and lawfully enacted, the terms of a secretively-negotiated trade deal could trump that law, forcing reform until it becomes compliant with the trade agreement.

In 2012, Canada passed its latest copyright reform bill, the Copyright Modernization Act (Bill C-11). While it had some glaring issues, some aspects of this bill were very fair and balanced to Internet users. Notably, it contained a law to ensure that Canadians would not have their creative works taken down or their identity disclosed to copyright holders without a judge overseeing the process. It's a system called notice-and-notice. It means that a copyright holder sends a notice to an Internet service provider or website that a certain user is engaged in infringing activity, and then the ISP or the online service sends along a notice on to the user. Studies have shown that it is a very effective system to discourage copyright infringement online. Unfortunately, this system is still a legal anomaly in the world.

In other countries, if ISPs and websites get a notice from a copyright holder, they are obligated to remove users' works or shut down their accounts to ensure that they won't be held legally liable for their users' activities. This is called notice-and-takedown, and this system has continued to force millions of URLs, videos, photos, and other creative works to be censored from the Internet, whether or not it was actually illegal. The United States, along with other countries that already have it, are pushing for the more restrictive notice-and-takedown system in TPP. Based upon the leak of the draft last year, we found that Canada, along with other nations, is instead pushing for language that would allow them to continue with the notice-and-notice system.

Since the negotiations and the draft is kept under such tight wraps, there's no way of knowing where this particular negotiation lies now. But one undeniable thing is this: the copyright industries are seeking to undo Canada's notice-and-notice system. They think they can get away with further bending laws to their will as long as they keep doing it in the dark, in secret back rooms in big luxurious hotels. This one copyright provision is one of dozens of policy issues that, if decided the wrong way, could harm millions of people's lives by forcing nations to pass laws that go against the rights and interests of the public.

More and more people around the world are coming to realize what is going on with TPP, and there has been a growing movement to fight it. This is likely why this latest meeting in Ottawa has been shrouded in unprecedented secrecy. The negotiations were suddenly and inexplicably moved from Vancouver, the actual venue for the meetings unannounced, and unlike previous rounds, there has been no time given to civil society and the public to communicate their concerns to negotiators.

For now, there is no easy way to stop these negotiations from occurring at all. What we can do is to make sure that if an agreement is made, it is made with adequate public participation and transparency. Otherwise, the secretive, opaque process will unravel this agreement--laws are only legitimate if they are transparently established by their citizens in an equal, participatory manner. We need to continue talking about this agreement, and warn others about the wide-ranging threat of this agreement on our digital rights and well-being. Those behind TPP's corporate agenda want this to be kept in the dark until it's too late for us fight it. We need to continually remind them that we know that they're up to, and we will never let that happen.