Lĝan
11-10-2015, 11:06 PM
https://i.imgur.com/7sJDhat.png
Today's release by Wikileaks of what is believed to be the current and essentially final version of the intellectual property (IP) chapter of the Trans-Pacific Partnership (TPP) confirms our worst fears about the agreement, and dashes the few hopes that we held out that its most onerous provisions wouldn't survive to the end of the negotiations.
Since we now have the agreed text, we'll be including some paragraph references that you can cross-reference for yourself—but be aware that some of them contain placeholders like “x” that may change in the cleaned-up text. Also, our analysis here is limited to the copyright and Internet-related provisions of the chapter, but analyses of the impacts of other parts of the chapter have been published by Wikileaks and others.
Ban on Circumventing Digital Rights Management (DRM)
The provisions in QQ.G.10 that prohibit the circumvention of DRM or the supply of devices for doing so are little changed from earlier drafts, other than that the opposition of some countries to the most onerous provisions of those drafts was evidently to no avail. For example, Chile earlier opposed the provision that the offense of DRM circumvention is to be “independent of any infringement that might occur under the Party's law on copyright and related rights,” yet the final text includes just that requirement.
The odd effect of this is that someone tinkering with a file or device that contains a copyrighted work can be made liable (criminally so, if wilfullness and a commercial motive can be shown), for doing so even when no copyright infringement is committed. Although the TPP text does allow countries to pass exceptions that allow DRM circumvention for non-infringing uses, such exceptions are not mandatory, as they ought to be.
The parties' flexibility to allow DRM circumvention also requires them to consider whether rightsholders have already taken measures to allow those non-infringing uses to be made. This might mean that rightsholders will rely on the walled-garden sharing capabilities built in to their DRM systems, such as Ultraviolet, to oppose users being granted broader rights to circumvent DRM.
Alongside the prohibition on circumvention of DRM is a similar prohibition (QQ.G.13) on the removal of rights management information, with equivalent civil and criminal penalties. Since this offense is, once again, independent of the infringement of copyright, it could implicate a user who crops out an identifying watermark from an image, even if they are using that image for fair use purposes and even if they otherwise provide attribution of the original author by some other means.
The distribution of devices for decrypting encrypted satellite and cable signals is also separately proscribed (QQ.H.9), posing a further hazard to hackers wishing to experiment with or to repurpose broadcast media.
Criminal Enforcement and Civil Damages
On damages, the text (QQ.H.4) remains as bad as ever: rightsholders can submit “any legitimate measure of value” to a judicial authority for determination of damages, including the suggested retail price of infringing goods. Additionally, judges must have the power to order pre-established damages (at the rightsholder's election), or additional damages, each of which may go beyond compensating the rightsholder for its actual loss, and thereby create a disproportionate chilling effect for users and innovators.
No exception to these damages provisions is made in cases where the rightsholder cannot be found after a diligent search, which puts the kibosh on ideas for the introduction of an orphan works regime that would cap remedies available against those who reproduce these otherwise-unavailable works.
One of the scariest parts of the TPP is that not only can you be made liable to fines and criminal penalties, but that any materials and implements used in the creation of infringing copies can also be destroyed (QQ.H.4(12)). The same applies to devices and products used for circumventing DRM or removing rights management information (QQ.H.4(17)). Because multi-use devices such as computers are used for a diverse range of purposes, this is once again a disproportionate penalty. This could lead to a family's home computer becoming seized simply because of its use in sharing files online, or for ripping Blu-Ray movies to a media center.
In some cases (QQ.H.7), the penalties for copyright infringement can even include jail time. Traditionally, this has because the infringer is operating a business of commercial piracy. But under the TPP, any act of willful copyright infringement on a commercial scale renders the infringer liable to criminal penalties, even if they were not carried out for financial gain, provided that they have a substantial prejudicial impact on the rightsholder. The copying of films that are still playing in movie theaters is also subject to separate criminal penalties, regardless of the scale of the infringement.
Trade Secrets
The severity of the earlier language on trade secrets protection has not been abated in the final text. It continues to criminalize those who gain “unauthorized, willful access to a trade secret held in a computer system,” without any mandatory exception for cases where the information is accessed or disclosed in the public interest, such as by investigative journalists or whistleblowers.
There is no evident explanation for the differential treatment given to trade secrets accessed or misappropriated by means of a computer system, as opposed to by other means; but it is no surprise to find the U.S. pushing such a technophobic provision, which mirrors equivalent provisions of U.S. law that have been used to persecute hackers for offenses that would otherwise have been considered much more minor.
Top-Down Control of the Internet
ICANN, the global domain name authority, provoked a furore earlier this year over proposals that could limit the ability for owners of domain names to shield their personal information from copyright and trademark trolls, identity thieves, scammers and harassers.
The TPP has just ridden roughshod over that entire debate (at least for country-code top-level domains such as .us, .au and .jp), by cementing in place rules (QQ.C.12) that countries must provide “online public access to a reliable and accurate database of contact information concerning domain-name registrants.”
The same provision also requires countries to adopt an equivalent to ICANN's flawed Uniform Domain-Name Dispute Resolution Policy (UDRP), despite the fact that this controversial policy is overdue for a formal review by ICANN, which might result in the significant revision of this policy. Where would this leave the TPP countries, that are locked in to upholding a UDRP-like policy for their own domains for the indefinite future?
The TPP's prescription of rules for domain names completely disregards the fact that most country code domain registries have their own, open, community-driven processes for determining rules for managing domain name disputes. More than that, this top-down rulemaking on domain names is in direct contravention of the U.S. administration's own firmly-stated commitment to uphold the multi-stakeholder model of Internet governance. Obviously, Internet users cannot trust the administration that it means what it says when it gives lip-service to multi-stakeholder governance—and that has ramifications that go even even deeper than this terrible TPP deal.
https://www.eff.org/deeplinks/2015/10/final-leaked-tpp-text-all-we-feared
Today's release by Wikileaks of what is believed to be the current and essentially final version of the intellectual property (IP) chapter of the Trans-Pacific Partnership (TPP) confirms our worst fears about the agreement, and dashes the few hopes that we held out that its most onerous provisions wouldn't survive to the end of the negotiations.
Since we now have the agreed text, we'll be including some paragraph references that you can cross-reference for yourself—but be aware that some of them contain placeholders like “x” that may change in the cleaned-up text. Also, our analysis here is limited to the copyright and Internet-related provisions of the chapter, but analyses of the impacts of other parts of the chapter have been published by Wikileaks and others.
Ban on Circumventing Digital Rights Management (DRM)
The provisions in QQ.G.10 that prohibit the circumvention of DRM or the supply of devices for doing so are little changed from earlier drafts, other than that the opposition of some countries to the most onerous provisions of those drafts was evidently to no avail. For example, Chile earlier opposed the provision that the offense of DRM circumvention is to be “independent of any infringement that might occur under the Party's law on copyright and related rights,” yet the final text includes just that requirement.
The odd effect of this is that someone tinkering with a file or device that contains a copyrighted work can be made liable (criminally so, if wilfullness and a commercial motive can be shown), for doing so even when no copyright infringement is committed. Although the TPP text does allow countries to pass exceptions that allow DRM circumvention for non-infringing uses, such exceptions are not mandatory, as they ought to be.
The parties' flexibility to allow DRM circumvention also requires them to consider whether rightsholders have already taken measures to allow those non-infringing uses to be made. This might mean that rightsholders will rely on the walled-garden sharing capabilities built in to their DRM systems, such as Ultraviolet, to oppose users being granted broader rights to circumvent DRM.
Alongside the prohibition on circumvention of DRM is a similar prohibition (QQ.G.13) on the removal of rights management information, with equivalent civil and criminal penalties. Since this offense is, once again, independent of the infringement of copyright, it could implicate a user who crops out an identifying watermark from an image, even if they are using that image for fair use purposes and even if they otherwise provide attribution of the original author by some other means.
The distribution of devices for decrypting encrypted satellite and cable signals is also separately proscribed (QQ.H.9), posing a further hazard to hackers wishing to experiment with or to repurpose broadcast media.
Criminal Enforcement and Civil Damages
On damages, the text (QQ.H.4) remains as bad as ever: rightsholders can submit “any legitimate measure of value” to a judicial authority for determination of damages, including the suggested retail price of infringing goods. Additionally, judges must have the power to order pre-established damages (at the rightsholder's election), or additional damages, each of which may go beyond compensating the rightsholder for its actual loss, and thereby create a disproportionate chilling effect for users and innovators.
No exception to these damages provisions is made in cases where the rightsholder cannot be found after a diligent search, which puts the kibosh on ideas for the introduction of an orphan works regime that would cap remedies available against those who reproduce these otherwise-unavailable works.
One of the scariest parts of the TPP is that not only can you be made liable to fines and criminal penalties, but that any materials and implements used in the creation of infringing copies can also be destroyed (QQ.H.4(12)). The same applies to devices and products used for circumventing DRM or removing rights management information (QQ.H.4(17)). Because multi-use devices such as computers are used for a diverse range of purposes, this is once again a disproportionate penalty. This could lead to a family's home computer becoming seized simply because of its use in sharing files online, or for ripping Blu-Ray movies to a media center.
In some cases (QQ.H.7), the penalties for copyright infringement can even include jail time. Traditionally, this has because the infringer is operating a business of commercial piracy. But under the TPP, any act of willful copyright infringement on a commercial scale renders the infringer liable to criminal penalties, even if they were not carried out for financial gain, provided that they have a substantial prejudicial impact on the rightsholder. The copying of films that are still playing in movie theaters is also subject to separate criminal penalties, regardless of the scale of the infringement.
Trade Secrets
The severity of the earlier language on trade secrets protection has not been abated in the final text. It continues to criminalize those who gain “unauthorized, willful access to a trade secret held in a computer system,” without any mandatory exception for cases where the information is accessed or disclosed in the public interest, such as by investigative journalists or whistleblowers.
There is no evident explanation for the differential treatment given to trade secrets accessed or misappropriated by means of a computer system, as opposed to by other means; but it is no surprise to find the U.S. pushing such a technophobic provision, which mirrors equivalent provisions of U.S. law that have been used to persecute hackers for offenses that would otherwise have been considered much more minor.
Top-Down Control of the Internet
ICANN, the global domain name authority, provoked a furore earlier this year over proposals that could limit the ability for owners of domain names to shield their personal information from copyright and trademark trolls, identity thieves, scammers and harassers.
The TPP has just ridden roughshod over that entire debate (at least for country-code top-level domains such as .us, .au and .jp), by cementing in place rules (QQ.C.12) that countries must provide “online public access to a reliable and accurate database of contact information concerning domain-name registrants.”
The same provision also requires countries to adopt an equivalent to ICANN's flawed Uniform Domain-Name Dispute Resolution Policy (UDRP), despite the fact that this controversial policy is overdue for a formal review by ICANN, which might result in the significant revision of this policy. Where would this leave the TPP countries, that are locked in to upholding a UDRP-like policy for their own domains for the indefinite future?
The TPP's prescription of rules for domain names completely disregards the fact that most country code domain registries have their own, open, community-driven processes for determining rules for managing domain name disputes. More than that, this top-down rulemaking on domain names is in direct contravention of the U.S. administration's own firmly-stated commitment to uphold the multi-stakeholder model of Internet governance. Obviously, Internet users cannot trust the administration that it means what it says when it gives lip-service to multi-stakeholder governance—and that has ramifications that go even even deeper than this terrible TPP deal.
https://www.eff.org/deeplinks/2015/10/final-leaked-tpp-text-all-we-feared