When I first started writing about the Anti-Counterfeiting Trade Agreement (ACTA) in 2007, practically no one had heard of it. That wasn't an accident, but a consequence of the attempt to keep the ACTA negotiations hidden behind tightly-closed doors.
But as we now know, in the age of Wikileaks, once a digital document exists, it is almost impossible to keep it secret, and progressive leaks of the ACTA draft – including an early one from Wikileaks itself – gradually revealed to a wider audience the bad things that were being planned for the enforcement of intellectual monopolies around the world.
Today, ACTA is all-but complete: the actual text seems finalised, with the rearguard fighting now centred on the legality of the end-result, particularly in the EU. Despite the fact that ACTA will be really bad news for European citizens, I am not optimistic: given the pig-headed approach the European Commission has taken throughout the ACTA process, it seems likely to me that one way or another it will force ACTA through the European Parliament.
That's the bad news; the good news is that the purifying effects of sunlight have had an impact even on the highly-resistant ACTA negotiations. As more and more has been learned about the details, and their outrageous nature, so more people have started fighting back and lobbying against them. This has led to some important victories in terms of removing some of the most egregious clauses. As a result, what is likely to come into effect soon is not nearly as bad as it could have been.
One of the key reasons ACTA exists at all was precisely to push through more extreme enforcement measures. Normally, WIPO would be the forum for drawing these. But a funny thing happened on the way to that forum: WIPO, once a bastion of knee-jerk maximalism when it comes to intellectual monopolies, has begun to understand – and even accept – the logic of those who oppose such an approach. Put another way, WIPO has become susceptible to the facts.
Proof of that comes in this rather extraordinary speech from no less a person than Francis Gurry, WIPO's Director General, who said:
The enticing promise of universal access to cultural works has come with a process of creative destruction that has shaken the foundations of the business models of our pre-digital creative industries. Underlying this process of change is a fundamental question for society. It is the central question of copyright policy. How can society make cultural works available to the widest possible public at affordable prices while, at the same time, assuring a dignified economic existence to creators and performers and the business associates that help them to navigate the economic system? It is a question that implies a series of balances: between availability, on the one hand, and control of the distribution of works as a means of extracting value, on the other hand; between consumers and producers; between the interests of society and those of the individual creator; and between the short-term gratification of immediate consumption and the long-term process of providing economic incentives that reward creativity and foster a dynamic culture.
Digital technology and the Internet have had, and will continue to have, a radical impact on those balances. They have given a technological advantage to one side of the balance, the side of free availability, the consumer, social enjoyment and short-term gratification. History shows that it is an impossible task to reverse technological advantage and the change that it produces. Rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it. There is, in any case, no other choice – either the copyright system adapts to the natural advantage that has evolved or it will perish.
A WIPO Director General who accepts that technological change cannot be fought, and that the copyright system might actually perish if it doesn't adapt to digital realities? No wonder that the content industries desperately started looking elsewhere for a completely new approach to dealing with this terrible threat, something that eventually morphed into ACTA.
But as I mentioned above, ACTA has not quite turned out as planned; so the question facing those same copyright maximalists was: what do we do now? And with stunning originality the answer turns out to be: exactly what we tried to do with ACTA. That is, draw up yet another completely new treaty that would ignore existing agreements – and draw it up in secret so that by the time anyone knows about it, it will be too late.
And thus we have the Trans-Pacific Partnership Agreement (TPP), which might just as easily have been called ACTA 2.0. But how, you might be asking, do we know anything about TPP if it is a secret? Because, of course, the US government's draft of the main chapter on intellectual monopolies has already been leaked and is available on the Knowledge Economy International (KEI) Web site. And since it is the US that is driving the transmogrification of TPP into a new war on sharing, just as it is did with ACTA, that means that thanks to this leak we know now what the basic proposals are.
Significantly, the US was a late-comer to the original partnership agreement, as Wikipedia explains:
The Trans-Pacific Partnership, also known as the Trans-Pacific Strategic Economic Partnership Agreement or TPP agreement is a multilateral free trade agreement that aims to integrate the economies of the Asia-Pacific region. The original agreement between the countries of Brunei, Chile, New Zealand and Singapore was signed on June 3, 2005, and entered into force on May 28, 2006. Five additional countries, including Australia, Malaysia, Peru, United States, and Vietnam, are currently negotiating to join the group.
As this notes, originally TPP was a fairly small-scale agreement between four Pacific countries; but the US obviously saw this as cunning way to circumvent the inconveniently reasonable WIPO by inserting an extremely aggressive chapter dealing with intellectual monopolies into the broader Pacific free trade agreement.
KEI has put together a quick summary of what exactly the US – or rather its content industries – are proposing for this addition. Here are some of the "highlights" of the sections dealing with copyright:
Copyright damages shall consider the suggested retail price or other legitimate measure of value submitted by the right holder.
(art. 4.5) The term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:
on the basis of the life of a natural person, the term shall be not be not less than the life of the author and 70 years after the author's death;
on a basis other than the life of a natural person, the term shall be: (i) not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or (ii) failing such authorized publication within 25 years from the creation of the work, performance, or phonogram, not less than 120 years from the end of the calendar year of the creation of the work, performance, or phonogram.
Would eliminate any possibility of parallel trade in any copyrighted good. (art. 4.2)
Each Party shall establish or maintain a system that provides for pre-established damages, which shall be available upon the election of the right holder
Requires criminal enforcement for technological measures beyond WIPO Internet Treaties, even when there is not copyright infringement (art. 5.9)
Impose a legal regime of ISP liability beyond the DMCA standards (art. 16.3)
Requires legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; (art. 16.3.b.vi.A)
Requires identifying internet users for any ISP, going beyond U.S. case law (art. 16.3.b.xi)
Includes the text of the controversial US/KOREA side letter on shutting down web sites
Here are the sections dealing with patents:
Parties agree to Patent Cooperation Treaty and the Patent Law Treaty
Patents shall be available for any new forms, uses, or methods of using a known product; and a new form, use, or method of using a known product may satisfy the criteria for patentability, even if such invention does not result in the enhancement of the known efficacy of that product. (art. 8.1)
Requires patent for second use (art. 8.1)
In civil and administrative proceedings involving patents, each Party shall provide for a rebuttable presumption that a patent is valid, and shall provide that each claim of a patent is presumed valid independently of the validity of the other claims.
[Placeholder for provisions concerning patent term restoration/adjustment] (art. 8.6)
Where a Party provides proceedings that permit a third party to oppose the grant of a patent, a Party shall not make such proceedings available before the grant of the patent. (art 8.7)
USTR proposal in TPP: Each Party may only exclude from patentability inventions, the prevention within its territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by law. (art. 8.3)
Which is more restrictive than the text of AUSFTA, which reads:
2. Each Party may only exclude from patentability: (a) inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by law; and (b) diagnostic, therapeutic, and surgical methods for the treatment of humans and animals. [emphasis added]
Each Party shall provide that a claimed invention is industrially applicable if it has a specific, substantial, and credible utility. (art. 8.12) Depending upon how you read this sentence, which also relates to Article 8.1, it either limits or expands the type of inventions that must be patented.
That last section is bad news in all sorts of ways. As well as apparently allowing surgical techniques to be patented – which will almost inevitably lead to higher costs for medicine - it also clearly does not allow software patents to be excluded from patentability.
This is a very hot topic in New Zealand at the moment, where the open source community is fighting valiantly to keep software patents out; if New Zealand signs up to the TPP in its current form, they will definitely come in. And the rumour is that the US will not allow that particular clause to be removed...
Now, some might say: well, so what? This is just about the Pacific region, and we have just seen off some of the worst ideas in ACTA, so Europe is fine. But what is becoming quite clear is that each new agreement seeks to use existing treaties as a kind of bare minimum, and then to apply the copyright and patent ratchets to push for even more. Indeed, it is striking how all these treaties are based on the unspoken assumption that intellectual monopolies will only ever be strengthened: there's never any question of giving more rights to users.
And yet if intellectual monopolies have any justification – and some of us would say they don't – it is because they strike a balance, granting government-backed, time-limited monopolies in return for ideas entering the public domain immediately afterwards, and not a moment later. The constant extension of copyright terms and patent reach is nothing less than an enclosure of the commons of ideas; agreements like ACTA and TPP are not abstractly adding to something, but taking away – from you and me.
This is why even here on the other side of the globe we must be gravely concerned by developments like TPP: if we don't raise awareness of the threats it poses to an intellectual commons that is universal and not just limited to the Pacific basin, and help people fight against it in the countries involved, we will surely find ourselves confronting very similar proposals in a few years' time, and with the battle already half lost.