As I mentioned last week, the Trans-Pacific Partnership (TPP) is an unprecedentedly entangling trade agreement, whose complexity is only made worse by the secrecy of its negotiations. Although small pieces of information have been leaked as early as 2011, the main source that analysts have to go by is the November 13th, 2013 Wikileaks disclosure. One of the documents leaked was a chapter regarding intellectual property provisions within the agreement. There are an unfathomable amount of details contained in this chapter, and there are probably hundreds of angles in which this agreement can be analyzed, both in IP law and many other topics. In order to move beyond generalities and into some degree of deeper understanding, however, these issues must be narrowed down and dug up. This article is an attempt to explain the significance and practical effect of the TPP’s IP laws on trademark and copyright standards, both domestically and globally.
Despite pending controversies, much of the TPP’s trademark and copyright law either runs in accordance to U.S. domestic law, or changes international law to more closely match U.S. policy. According to Wikipedia, the TPP intellectual property system bases and expands its provisions on the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). A vast sum of this agreement is consistent with U.S. domestic IP law, as the TRIPS agreement was the product of intense lobbying by the U.S, along with Japan and close European allies. In several respects, such as trademark law, TPP guidelines move even closer to U.S. domestic policy, mirroring the 1946 Lanham Act. Albeit, there are some detailed exceptions and explanations, TPP essentially obligates member nations to accept trademarks in accordance to the Lanham Act, whereas, TRIPS allowed for sovereign discretion to reject trademarks not fitting their domestic standards. Another similarity is an extension of copyright laws from 50 years after death in TRIPS to 70, which also matches the U.S. Copyright Act of 1976. While much of trademark and copyright law is geared toward coercing other member nations to enforce U.S. trademark and copyright law, there is one major exception.
A hotly contested and murkier aspect of this chapter is the provisions regarding internet use. Because the chapter regarding E-commerce and it’s relation to free flow of information has never been leaked, it is difficult to ascertain how restrictive these provisions are. What is known is that much of the law in this category is based off of the 1998 Digital Millennium Copyright Act (DMCA). Co-sponsor of the Senate’s Fast-Track Authority (FTA) bill for TPP, Ron Wyden (D-OR), supports the changes in the TPP, arguing that the free-flow provisions will help prevent countries from forcing service providers from censoring, filtering, or blocking their content. If Wyden’s argument is correct, it should work to make the internet more globally standardized, much in the American model.
Wyden’s point becomes controversial, however, when considering the provisions on temporary copies. This is one element in which TPP authority circumvents U.S. law. The DMCA denies rights for temporary copies, i.e. files transferred online through internet service providers (ISP), protecting ISPs from liability regarding copyright infringements. The TPP copyright provisions, on the other hand, give the rights of temporary copies to the copyright holder. This could change “safe harbor” provisions in U.S. law that grant ISPs immunity for holding cached copies of infringing works. This could give Hollywood, (A major supporter of TPP) for example, much more clout in international dispute resolution over copyright violations with ISPs, perhaps creating a more enforcement-minded service provider industry. Or, as some opponents of the measure fear, it could be the creation of an internet community afraid share information freely, lest face retaliation by corporate overlords.
While it does appear that TPPs trademark and copyright provisions will change the law significantly in other nations, it is, with some exception, more of an example of increased U.S. projection into the rest of the Pacific Rim. This runs in accordance with the Obama administration’s assertion that it will help the U.S. continue to dictate the rules of trade, especially in the wake of an emerging China. It will be interesting to see if the one major exception however, the temporary copies provisions, will make it to the final version assuming that TPP becomes law. I personally would be shocked if that standard became international law, but it depends on the amount of backlash from both the public and the tech industry. My hunch is that this controversial provision, among others which will be discussed in additional posts, will be used as bargaining chips in order to pass the bill through Congress. It will need to bear intense public and expert scrutiny, however, because we have seen what can happen when the doors close.
Electronic Frontier Foundation – Maira Sutton
Intellectual Property Watch – Burcu Kilic and Pablo Viollier
Intellectual Property Watch – Sean Flynn
Reason.com – Nick Gillespie
World Trademark Review – Jacob Shindler