Why Europe should worry about the Trans-Pacific Partnership

Just as we in Europe are involved in a policy battle over the Internet and copyright, there is a similar battle taking place on the other side of the world around the Pacific Rim. It is happening in the context of a trade agreement driven by the United States, and innocently entitled the Trans-Pacific Partnership - or TPP. Buried deep within the TPP are proposals that fulfil the wishlist of the American entertainment industries for ISPs to police copyrighted content.

The Trans-Pacific Partnership TPP is being negotiated between the United States and the governments of Australia, New Zealand, Brunei Darussalam, Malaysia, Singapore, Vietnam , Chile and Peru.

The TPP contains a chapter on copyright enforcement, with a clear focus on the Internet issues. As with ACTA (Anti-counterfeiting Trade Agreement), the TPP is being drafted by trade negotiators, behind closed doors. The TPP drafts are no available for public scrutiny. I've been following this now for a little while, and it is my understanding that requests for the negotiators' drafts have been refused.

The final text will only be released when it has been agreed, and the governments will be under an obligation to comply.

Hence, as with ACTA, the only information comes from leaked drafts. From what can be ascertained, the enforcement chapter is structured in a similar way to ACTA. But the measures are more specific and quite draconian. The TPP clearly seeks to impose US-style enforcement measures onto the Pacific Rim countries, but also to extend the law towards a tight liability on ISPs.

If one is looking for similarity with the European experience, the current leaked TPP draft provides for :

"legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials"

That word 'co-operation' was identified in the EU Telecoms Package as being a euphemism for ISPs taking action against websites or users. (See my book: The Copyright Enforcement Enigma )

The TPP provides for rights-holders to get users' personal data from ISPs. It is not clear whether the purpose would be for a court action, or for 3-strikes measures, or both:

Each Party shall establish an administrative or judicial procedure enabling copyright owners who have given effective notification of claimed infringement to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.

The TPP provides for US-style limitation of liability, based on a notice and action system, which seems to be similar to that being proposed in the IPRED review:

expeditiously removing or disabling access to the material residing on its system or network on obtaining actual knowledge of the infringement or becoming aware of facts or circumstances from which the infringement was apparent, such as through effective notifications of claimed infringement

Even though some of the countries involved - New Zealand and Chile - have put forward alternative proposals, it is almost certain that the US will drive through what its industries want.

In the TPP, the US has found a group of compliant governments, most of whom will depend on the US in some way. Australia has been bullied by the US government for many years, and the Australian government always seems to give in. (For detail on Australian-US relations, you should read the work of the investigative journalist John Pilger).

The reason that Europe might be concerned about the TPP is that it threatens to act as a precedent. Once in place, if these measures are agreed, the US entertainment industries will hold it up as an example of what can be done, and will use it as another lever to pressure the EU and member state governments. Where governments or industry are weak, those will be the pressure points. It would be better for this to be thrashed out now.

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Read more on the TPP information website set up by Public Knowledge

You may re-publish my article under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com. Media and Academics - please cite as Monica Horten, Why Europe should be concerned about the Trans-Pacific Partnership (TPP), www.iptegrity.com 19 April 2012 Commercial users - please contact me.