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Today’s release by Wikileaks of what is believed to be the current and essentially final version of the intellectual property (IP) chapter of the Trans-Pacific Partnership (TPP) confirms our worst fears about the agreement, and dashes the few hopes that we held out that its most onerous provisions wouldn’t survive to the end of the negotiations.

Since we now have the agreed text, we’ll be including some paragraph references that you can cross-reference for yourself—but be aware that some of them contain placeholders like “x” that may change in the cleaned-up text. Also, our analysis here is limited to the copyright and Internet-related provisions of the chapter, but analyses of the impacts of other parts of the chapter have been published by Wikileaks and others.

Binding Rules for Rightsholders, Soft Guidelines for Users

If you skim the chapter without knowing what you’re looking for, it may come across as being quite balanced, including references to the need for IP rules to further the “mutual advantage of producers and users” (QQ.A.X), to “facilitate the diffusion of information” (QQ.A.Z), and recognizing the “importance of a rich and accessible public domain” (QQ.B.x). But that’s how it’s meant to look, and taking this at face value would be a big mistake.

If you dig deeper, you’ll notice that all of the provisions that recognize the rights of the public are non-binding, whereas almost everything that benefits rightsholders is binding. That paragraph on the public domain, for example, used to be much stronger in the first leaked draft, with specific obligations to identify, preserve and promote access to public domain material. All of that has now been lost in favor of a feeble, feel-good platitude that imposes no concrete obligations on the TPP parties whatsoever.

Another, and perhaps the most egregious example of this bias against users is the important provision on limitations and exceptions to copyright (QQ.G.17). In a pitifully ineffectual nod towards users, it suggests that parties “endeavor to achieve an appropriate balance in its copyright and related rights system,” but imposes no hard obligations for them to do so, nor even offers U.S.-style fair use as a template that they might follow. The fact that even big tech was ultimately unable to move the USTR on this issue speaks volumes about how utterly captured by Hollywood the agency is.

Expansion of Copyright Terms

Perhaps the biggest overall defeat for users is the extension of the copyright term to life plus 70 years (QQ.G.6), despite a broad consensus that this makes no economic sense, and simply amounts to a transfer of wealth from users to large, rights-holding corporations. The extension will make life more difficult for libraries and archives, for journalists, and for ordinary users seeking to make use of works from long-dead authors that rightfully belong in the public domain.

Could it have been worse? In fact, yes it could have; we were spared a 120 year copyright term for corporate works, as earlier drafts foreshadowed. In the end corporate works are to be protected for 70 years after publication or performance, or if they are not published within 25 years after they were created, for 70 years after their creation. This could make a big difference in practice. It means that the film Casablanca, probably protected in the United States until 2038, would already be in the public domain in other TPP countries, even under a life plus 70 year copyright term.

New to the latest text are the transition periods in Section J, which allow some countries a longer period for complying with some of their obligations, including copyright term. For example, Malaysia has been allowed two years to extend its copyright term to life plus 70 years. For Vietnam, the transition period is five years. New Zealand is the country receiving the most “generous” allowance; its term will increase to life plus 60 years initially, rising to the full life plus 70 year term within eight years. Yet Canada, on the other hand, has not been given any transition period at all.

Ban on Circumventing Digital Rights Management (DRM)

The provisions in QQ.G.10 that prohibit the circumvention of DRM or the supply of devices for doing so are little changed from earlier drafts, other than that the opposition of some countries to the most onerous provisions of those drafts was evidently to no avail. For example, Chile earlier opposed the provision that the offense of DRM circumvention is to be “independent of any infringement that might occur under the Party’s law on copyright and related rights,” yet the final text includes just that requirement.

The odd effect of this is that someone tinkering with a file or device that contains a copyrighted work can be made liable (criminally so, if wilfullness and a commercial motive can be shown), for doing so even when no copyright infringement is committed. Although the TPP text does allow countries to pass exceptions that allow DRM circumvention for non-infringing uses, such exceptions are not mandatory, as they ought to be.

The parties’ flexibility to allow DRM circumvention also requires them to consider whether rightsholders have already taken measures to allow those non-infringing uses to be made. This might mean that rightsholders will rely on the walled-garden sharing capabilities built in to their DRM systems, such as Ultraviolet, to oppose users being granted broader rights to circumvent DRM.

Alongside the prohibition on circumvention of DRM is a similar prohibition (QQ.G.13) on the removal of rights management information, with equivalent civil and criminal penalties. Since this offense is, once again, independent of the infringement of copyright, it could implicate a user who crops out an identifying watermark from an image, even if they are using that image for fair use purposes and even if they otherwise provide attribution of the original author by some other means.

The distribution of devices for decrypting encrypted satellite and cable signals is also separately proscribed (QQ.H.9), posing a further hazard to hackers wishing to experiment with or to repurpose broadcast media.

Criminal Enforcement and Civil Damages

On damages, the text (QQ.H.4) remains as bad as ever: rightsholders can submit “any legitimate measure of value” to a judicial authority for determination of damages, including the suggested retail price of infringing goods. Additionally, judges must have the power to order pre-established damages (at the rightsholder’s election), or additional damages, each of which may go beyond compensating the rightsholder for its actual loss, and thereby create a disproportionate chilling effect for users and innovators. Read More!