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72

TPPA: It's Extreme

by Rick Shera

The Trans Pacific Partnership Agreement attracted little attention when it was forged in 2005. That changed with negotiations to admit five new countries, most notably the US. And now, says Rick Shera, things are getting seriously weird. Yes, it's a copyright thread …

It's one way of negotiating, I guess: leak a document containing multiple extreme positions and then gracefully back down in the face of inevitable objection from other parties fuelled by local community uproar - arriving at terms that are at least as good if not better than what you were really after.  And the US is playing that game like a master if its latest leaked the Trans Pacific Partnership Agreement (TPPA) chapter is anything to go by.  Mind you, it had some ground to make up after its embarrassing stumble with ACTA.

Positions as extreme as the latest US IP chapter surely cannot be anything other than blatant negotiation bullying. Even the RIAA (who must have had a large input into the paper given its focus on phonograms) could not in its wettest dreams expect to have New Zealand and other parties take such a large axe to our IP laws ... could they?

But, without further ado, here are the lowlights in terms of the main changes which we would need to make to New Zealand law:

• Rights holders would be allowed to prevent parallel imports (which are currently allowed under New Zealand trademark law). We know how important it is to many old school rights holders to divide the world into artificial zones so that they can maintain archaic differential pricing and release dates.  I don't imagine therefore that they will be consenting to parallel imports - so this is effectively a ban.

• Strengthened geographical indications - the champagne producers have managed to stop us describing our bubbly as champagne - expect the same thing to happen to brie, parmagiano reggiano, Gouda, Edam and the like.  Even Yorkshire pud and American hot dogs might not be safe.

• Massive extension of copyright terms, from life of author plus 50 years, to 70 years.  Works with unknown or no human author to 95 years. In some cases even extensions out to 120 years.  We've come a long way since the Statute of Anne and then the American Constitution set basic copyright terms at 14 years, just because the US wants to continue to extract monopoly pricing on Mickey Mouse (who would have been in the public domain years ago if it were not for these extensions in the US).  And remember, we're pretty much on our own on this one as far as Common law countries go - Australia, another party to the proposed TPPA, has already succumbed to some of these longer copyright terms so will be looking to even the playing field.  I say that because the Australian Government Productivity Commission has just concluded that its Free Trade Agreement extension of copyright terms has been negative (PDF) for Australia, but then goes on to say that Australia should look at redressing the deficit by having its other trading partners cave in as well.

• Circumventing a Technological Protection Measure (TPM) will to be a criminal offence even if the work it protects is in the public domain or you want to exercise fair dealing rights like educational use or current affairs reporting.  We'll also need to make sure that we change our curent regime so that region coding and zone access controls are protected (we decided to specifically state that such artificial measures were NOT protected when we changed our TPM law in 2008).

• The return of s92A guilt on accusation, repeat infringer, termination of internet accounts - 3 strikes or whatever you want to call it.  So, the US wants us to effectively scrap the last 3 years of consultation around the replacement of section 92A and the reasonably balanced (but still not perfect) approach we are working towards in the Copyright (Infringing File Sharing) Amendment Bill due to be passed in the next couple of months.  Imagine you're an ISP who has to bear the cost of gearing up for that regime only to be told later in the year that its Ground Hog Day and we're all going back to the section 92A debacle.

• Forcing us to reverse the decison recently taken to exclude software patents per se.

• Introducing statutory damages (which give rights holders windfall damages up to 3 times their actual losses).  No doubt the copyright trolls will like that.  Add to that full recovery of lawyers' fees plus presumptions in favour of rights holders (so they don't need to first prove they there is any copyright or that they own it). All of this will effectively give anyone wanting to claim IP rights a huge advantage.  We know that many IP claims are in fact made by companies wanting to shut down competition or by those wanting to stifle criticsm. IP law should not be used for these sort of ulterior motives.

• ISP policing of IP rights incuding a requirement for ISPs to give up their customers' identities when they receive a mere allegation from a rights holder.

• Criminal liability even where the infringement has no commercial value at all.

• Pushing Courts to impose imprisonment as the default sentence for infringement even where no monetary benefit is obtained.

These last two are particularly well hidden - the provisions actually refer to criminal liability for infringements on a commercial scale.  But, when you read the fineprint, commercial scale includes significant wilful ... infringements that have no direct or indirect motivation of financial gain.

And, as if the US version of the TPPA itself wasn't bad enough, if we sign up to this, we'd also be agreeing to enter into 7 other international IP treaties.  These include ones, like the two WIPO internet treaties, that we have already debated and decided NOT to accede to. Plus others that we have decided are not of pressing concern.  All this by the end of this year.

That's why I say that these suggestions from the US, if we agreed to them, overall would represent huge changes to our IP laws not seen in the last 20 years.

The galling thing about all of this too is that we have been debating these issues for many years in a rational, multistakeholder, consultative manner not in the secretive manner in which TPPA is being railroaded through. In the copyright arena for example, we started to look at how our law should deal with digital creativity 10 years ago with MED's publication of two comprehensive papers on IP in the digital age.  Since then we've debated specific proposals in various legislation - Patents Act, Trade Marks Act, Copyright Act, plant varieties etc - they've all been revised to take account of these issues.  Parliament and successive Governments have repeatedly approved the fine balances that we have arrived at. This would run a coach and horses through much of that but at least our officials are not having a bar of it (PDF). They need our support.

It's somewhat patronising to now be told that we effectively got it all wrong and need to make fundamental changes ... but, oh, wait a minute, we're not going to tell you what those changes are.

(See also the podcast of my TPPA interview with Kathryn Ryan, Nine to Noon, 16 March 2011.)

Rick Shera is an Auckland intellectual property lawyer and @lawgeeknz on Twitter. This post is re-published from the original on Rick's blog.

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