TTIP Update V

Today's update is a little odd, since it's not actually about TAFTA/TTIP, at least not directly. Although the second round is taking place this week, it's almost certain we'll be told nothing about the real substance of the discussions. That's...

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Today's update is a little odd, since it's not actually about TAFTA/TTIP, at least not directly. Although the second round is taking place this week, it's almost certain we'll be told nothing about the real substance of the discussions. That's because even though these massive trade agreements affect hundreds of millions of people, the latter are not given any opportunity to see the draft texts as they are discussed, or to have any meaningful dialogue with the negotiators. That may have been acceptable 30 years ago, but in the age of the Internet, when it is trivial to make documents available, and easy to enter into online discussions, it's outrageous.

The same has been true for the parallel Trans-Pacific Partnership agreement (TPP) negotiations, which is doing for the Pacific what TAFTA/TTIP aims to do for the Atlantic: define the terms of not just trade, but also the health, safety and environmental regulations that govern our lives. The almost-total secrecy of the TPP talks, which are much further along than those of TAFTA/TTIP, was shattered yesterday, when Wikileaks released a text [.pdf] of the most contentious chapter: that covering intellectual monopolies.

What makes this particularly interesting is that it shows the negotiating positions of all the nations taking part – these are the US, Canada, Australia, New Zealand, Japan, Malaysia, Vietnam, Brunei, Singapore, Chile and Peru. That means we can see quite clearly what the US is pushing for in TPP – and what it is likely to be looking for in TAFTA/TTIP. Of course, the dynamics in the two agreements are very different: the EU is able to stand up to the US – at least theoretically – in a way that the much smaller nations that make up most of TPP can't (even Japan is dwarfed by both US and EU).

The leaked TPP draft is from 30 August, and so represents an earlier stage of the talks. It is so full of bracketed alternatives where the negotiators have been unable to agree on a text that it is clear a huge amount remains to be done. The brackets also make reading the text hard: if you'd like a summary of what's in the chapter, there are good ones from KEI and the EFF. Here I will just pull out some elements that are relevant to TAFTA/TTIP and the digital world.

As far as patents are concerned, the US wants everything to be patentable:

each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application.

That includes software patents, but also "plants and animals" and "surgical methods". In addition, here's what the US wants:

a Party may not deny a patent solely on the basis that the product did not result in enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application.

It wants patents for things that don't actually do anything more than a current invention, but are simply "new" - that is, different in some unimportant way. This would allow so-called "ever-greening" of patents, which would dilute the value of patents even more, moving them even further from their original purpose of promoting innovation.

The copyright section is one of the most interesting in the leak, since it touches on so many areas I've discussed here on Open Enterprise in the context of ACTA. Surprisingly, it manages to go beyond ACTA in its awfulness. This, for example, is what the US wants:

Each Party shall provide that authors, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).

TPP would make even the transient copies of works made as they pass over the Internet, or stored in a computer's RAM, all subject to copyright. That would mean that everyone would need to get permission from copyright holders to download or even view any copyright work. I'm not sure how that would work in practice, but even the idea of it is chilling. It is evidently trying to make the entire Internet a permission-based system.

As far as enforcement is concerned, there's the following (agreed) section for civil damages:

In determining the amount of damages under paragraph 2, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

Which is essentially identical with ACTA , Article 2.2:

In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service,measured by the market price, the suggested retail price.

This goes to show how ACTA is by no means dead, and lingers on in this residual way. Criminal infringement is even worse:

Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale.

But what is commercial scale? Here's what the US wants to include in the definition:

significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain

That says people can be sent to prison for copyright infringement, even if there is no direct or indirect motivation of financial gain. The question then becomes: what is "significant"? Probably a smartphone with a few thousands MP3s that you've ripped from CDs...

Like ACTA, there is also criminal liability for aiding and abetting infringement, again, even if there is no financial gain:

With respect to the offenses for which this Article requires the Parties to provide for criminal procedures and penalties, Parties shall ensure that criminal liability for aiding and abetting is available under its law.

That might catch open source developers if their code is used for making unauthorised copies, for example, even if they were not for financial gain.

Moreover, the criminal penalties must be harsh:

penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement

Another very troubling aspect is what's happening with the following clause on ISP intermediary liability:

Each Party shall limit the liability of, or the availability of remedies against, internet service providers when acting as intermediaries, for infringement of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services.

Both the US and Australia oppose that protection, without which ISPs would become liable for everything that their customers do. If that is enacted, it would mean that ISPs would have to spy on everything, otherwise they would run the risk of being held liable for infringement. That, in its turn, would inevitably lead to massive censorship, since ISPs would naturally err on the side of caution rather than risk huge fines under TPP.

[Update: Michael Geist has carried out a more detailed analysis of the ISP liability section – well worth reading.]

It's worth emphasising that the leak concerns an older version of the draft, and that things could have changed by now. But that older version does show us what alternatives are being proposed, and very often the differences are minor. What's clear, is that the US has been pushing for maximalist intellectual monopolies at every turn. There's no reason to think that its approach during the current TAFTA/TTIP will be any different.

There's one very direct impact that this TPP leak could have on TAFTA/TTIP. In the US, President Obama is desperately trying to obtain a "Fast Track" authority: this would essentially cut the country's politicians out of the TPP negotiations, giving them just one "yes" or "no" vote at the end. In such a vote, they would be unable to make changes, and would probably be forced to accept the whole thing, including the sections that they don't like.

If Obama fails to get Fast Track – something that the TPP leak makes harder – it means that the TPP text could be changed by US politicians before they approve it – and that won't go down well with the other TPP countries. But the same would also be true for TAFTA/TTIP: without Fast Track, the US negotiators could not guarantee that the text would not be changed by US politicians. That would naturally upset EU politicians, who would demand the same right, which would change TAFTA/TTIP dramatically.

And there's another issue here. We've long suspected that the intellectual monopolies chapter of TPP would be bad, and the Wikileaks document confirms this. You can also understand why the US has been adamant that the negotiations should be secret: now that we can see what's in at least part of it, we can work to improve its worst features. Without the text, that's impossible.

This latest leak confirms once again why we must push to have drafts released immediately. There is no justification for not doing so – they are not "secret", since all parties can see it. The only ones who can't are the public, in whose name and for whose benefit they are supposedly being negotiated. That's truly a disgrace.

Full list of previous TTIP Updates.

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