A Wolf in Sheep’s Clothing: The Trans-Pacific Partnership

[Image Source: http://flic.kr/p/osRzan]

After the scrapping of the ‘Stop Online Piracy Act’ (SOPA) and the ‘Protect IP Act’ (PIPA) in the U.S., one could have been under the impression that the Internet would be free from unadulterated interference by the government. SOPA and PIPA basically gave the government unprecedented powers to shut down any website/blog at will. Be that as it may, few know about the presence of an equally perilous agreement called the ‘Trans-Pacific Partnership’. U.S. is a key member of this partnership bolstered by corporate lobbyists and this will ultimately be pushed down on all countries around the world by means of trade deals. WikiLeaks in recent times has released some draft chapters of the TPP. In this blog post, I will try to analyze some contentious provisions of the TPP from the viewpoint of an Indian internet user.

Introduction

The Trans-Pacific Partnership is one of the largest and the most controversial free trade agreements of the recent past. The deal is between 12 countries in the Pacific region who are responsible for 40 percent of the world’s GDP and 26 percent of the world’s trade. The importance of this agreement is evident from the fact that negotiations for the same have been happening for nearly a decade now. But the perversity lies in the fact that the negotiations have been taking place in secret, forcing the observers to only rely on leaked drafts to guess at the proposed provisions. The text, as currently written, will have a number of major impacts, including lengthening copyright terms in many party nations, compelling Internet Service Providers to police copyright violations, limiting access to low-cost medications and chilling some basic uses of the Internet. It would also make the approval process more difficult for generic drug makers and extend protections for biological medicines. The agreement has also faced criticism for restricting access to knowledge.

Trade negotiators seem to be persuaded that the trade agreement would be good for trade and corporate profits. But another risk here is that it will benefit the wealthiest sliver of the global elite at the expense of everyone else. These high stakes are why it is especially risky to let such negotiations proceed in secret. This secretive nature negates the possibility of a democratic process that can exert the checks and balances required to put limits on the negative effects of these agreements.

Analysis

  1. Internet Freedom

For a regular Internet user, sharing information is indispensable.

A major issue regarding TPP is the right accrued to the copyright holders to prohibit reproductions of their works even in temporary form [Article QQ. G.1, TPP]. Thus, even sharing a song with a friend would amount to infringement. This is troublesome since almost every Internet user needs to access online information and create a temporary copy of the data. In relation to this, TPP imposes criminal liability on wilful copyright or related rights infringement that have no direct or indirect motivation of financial gain [Article QQ.H.7, TPP].

Hence, a person storing information for private use has the same liability as a person with an objective to gain commercial benefits out of the data. TPP also affects anyone who shares information indirectly. So, if someone posted something copyrighted on my website, I would be held liable or my website would be taken down. This would even cripple sharing data on Facebook or YouTube. Making of documentaries would necessarily entail infringement on multiple levels.

  1. Innovation & Creativity

TPP provides each party the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them [Article QQ.G.2, TPP]. The bone of contention arises in the proposal to extend this term of protection of work to a 100 years after the author’s death (on the basis of life of a natural person). [Article QQ.G.6, TPP]. This work includes a photograph, phonogram or a performance. This will curtail experiments and hinder the growth of new technology. It will make the Internet repressive.

  1. Intermediary Liability

The agreement also provides for the liability of Internet Service Providers [Article QQ.I.1, TPP]. Each party to the agreement is free to decide, within its own domestic laws, on what constitutes an Internet Service Provider. It provides for procedures for notifications of claimed infringement and for removing or disabling access to infringing material upon notification from the right holder through a procedure established by each Party [Article QQ.I.2 (a), TPP].

In order to strengthen the aforementioned provision, it also provides for legal incentives for internet service providers to comply with these procedures, or remedies against internet service providers who fail to either give effective notifications of claimed infringement or remove those impugned material from their networks [Article QQ.I.4, TPP]. Essentially, TPP makes the ISPs copyright enforcers. Though it was earlier presumed that ISPs spied on individuals, TPP legitimizes the whole situation.

Conclusion

Internet corresponds to freedom of expression and sharing of information. The Trans-Pacific Partnership with its secrecy and centralization promotes corporate interests over individual rights. It criminalizes file sharing which literally breathes life into the Internet. People are unaware of this lurking danger and if there is a time to wake up, it’s now!

 

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