From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Saturday, 7 November 2015

TPP backlash: is the finalised agreement worth the hype?

Tom Dearden
This blog has devoted a number of (concerned) posts [hereto the Trans-Pacific Partnership, also known as TPP and possibly on account of its aura of secrecy.

A couple of days ago New Zealand issued the full text of the final version of the TPP.

Katfriend and tech law enthusiast Tom Dearden has read it for us, and we are delighted to host his lively analysis.

Here's what Tom writes:

"The leak of details of what was believed to be the final version of the TPP by Wikileaks a few weeks ago has sparked heated debate, and attracted criticism from free speech and transparency groups arguing that the agreement would sound the death knell for an open internet, and also for those without the means to afford expensive pharmaceutical products.

Well, the full text of the agreement which has been negotiated in secret has now been released by the New Zealand Ministry of Foreign Affairs and Trade, and is decidedly unchanged from last month’s leak.

While this is an incredibly dense document (around 6000 pages), I shall touch on a few of the glaring issues that struck me.

First:

Article 18.58: Right of Reproduction
Each Party shall provide to authors, performers and producers of phonograms the exclusive right to authorise or prohibit all reproduction of their works, performances or phonograms in any manner or form, including in electronic form.

This looks like the basis of copyright itself. What is concerning however is that it would appear to leave no room for limitations or exceptions. It strikes me as a step backwards in terms of technology and media in general. This seems to undermine the US doctrine of ‘fair use’, by allowing rightholders to permit or prohibit (at their discretion) the reproduction of their work. There is no reason this would not extend to, for example, the transfer of audio files from a CD to an iPod. It might also cause issues with creating a backup of a computer’s hard drive if that drive includes protected works. While this would be nigh on impossible to enforce in any practical manner, it ensures that ‘Average Joe’ will, at any given moment, likely be infringing copyright, and may therefore be subject to financial penalties. Those who drafted the agreement either have no idea how technology works, or are willfully ignoring reality and instead focusing on the desires of their greatest contributors (large multinational companies).

Secondly:

Article 18.59: Right of Communication to the Public
Without prejudice to Article 11(1)(ii), Article 11bis(1)(i) and (ii), Article 11ter(1)(ii), Article 14(1)(ii), and Article 14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive right to authorise 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.

This has some merit, in that it helps to protect rightholders in the event of an infringement. However it will likely cause more harm than good. It will hit content hosts such as YouTube, and unless they hire an army of moderators whose sole purpose is to scour the staggering 300 hours of content uploaded every minute, then they will certainly fall foul of this provision. Thankfully there is no mention of holding viewers accountable, as there is often no way for them to know whether the work was uploaded by, or with the permission of, the owner.

Thirdly:

Article 18.62: Related Rights
2.(a) the broadcasting and communication to the public of their unfixed performances, unless the performance is already a broadcast performance; and (b) the fixation of their unfixed performances.

While there is currently nothing preventing a person from snapping a picture or a video in public, this article ensures that a shutter-happy person might find themselves in hot water if the subject of their photograph or video can be construed as a ‘performance’, for which there seems to be no definition affixed.

Possibly less worrisome
than the TPP?
Lastly:

Article 18.68: Technological Protection Measures (TPMs)
1. In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorised acts in respect of their works, performances, and phonograms, each Party shall provide that any person that: (a) knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure that controls access to a protected work, performance, or phonogram;

In general this is fair, as it helps to protect works in a manner that is not prejudicial to consumers… mostly. In the mid 2000’s, some publishers of software, predominantly PC games, used a method of copy protection called Starforce which proved problematic, as it caused instability issues within the OS, caused physical degradation of optical drives, and for many users, rendered the game they had legitimately purchased worthless without cracking the copy protection. Granted, this article refers only to phonograms, however it is entirely foreseeable that similar issues could rear their ugly heads in future.

On the plus side, Articles 14 seem to strengthen the rights of consumers by increasing transparency, disallowing corporations from participating in the regulatory process, creating a standard definition by which practices may be classed as anti-competitive, and reducing the misrepresentation of material facts (e.g. receiving lower internet speeds than were advertised).

As I mentioned, this is an incredibly dense document, and a cursory glance will not be sufficient to generate an informed opinion on the agreement as a whole. However, the Transatlantic Trade and Investment Partnership Agreement is currently being negotiated, and if it looks anything like the TPP, it will require some very careful scrutiny before it is ship shape."

3 comments:

Adrian Aronsson-Storrier said...

Thanks Tom,

Just a quick comment on your first issue in relation to the right of reproduction and the availability of limitations and exceptions. Note that Article 18.65 of the TPP explicitly addresses the availability of limitations and exceptions, requiring any exceptions to comply with a trips-style three-step test as follows:


1. With respect to this Section, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.

2. This Article does not reduce or extend the scope of applicability of the
limitations and exceptions permitted by the TRIPS Agreement, the Berne Convention, the WCT or the WPPT.

Adrian Aronsson-Storrier said...

On limitations and exceptions it is also worth taking a look at Article 18.4: ('Understandings in Respect of this Chapter'), which provides as follows (with emphasis added in bold):

Having regard to the underlying public policy objectives of national systems, the Parties recognise the need to :
(a) promote innovation and creativity;
(b) facilitate the diffusion of information, knowledge, technology, culture and the arts; and
(c) foster competition and open and efficient markets,
through their respective intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including right holders, service providers, users and the public.

Anonymous said...

This is the difference between a tech law enthusiast and a lawyer

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':