What’s the deal with the TPP?

By Jeb Kicker

Many Americans have heard of this giant trade deal known as the TPP, or Trans-Pacific Partnership. Most don’t have a clue what the agreement actually contains or what effects it will have on our situation in America. All citizens should at least know what is being discussed; this pact will have enormous implications and the widespread ignorance of its provisions is by design. Let’s dive in.

One of the largest areas of contention with the TPP lie within the provisions strengthening copyright rules. Here are some of the most dangerous provisions:

The criminalization of the misuse of trade secrets

Under current U.S. law, trade secret misappropriation is only a criminal offense when harm is done to the owner or the action benefits someone else. No longer. Any unauthorized access to trade secrets on a computer system is illegal, even when no copy or disclosure is made, and even when the access neither harms nor benefits anyone. As a deeper concern, there are no safeguards included for the protection of investigative journalists, security researchers or whistleblowers, potentially criminalizing anyone who obtains access to secret information online.

ISP / Content Provider Liability

According to a leaked February 2011 draft, Article 16 of the Intellectual Property chapter insists that signatory nations provide legal incentives for internet service and content providers to police copyright infringement themselves, pushing the financial and administrative burden of copyright enforcement onto the ISPs and intermediaries. Put simply, this provision forces ISPs (Comcast, Verizon, SuddenLink) and content providers (Facebook, Google, Reddit) to police their customers for copyright infringement. Setting aside the implausibility of these providers to enforce draconian copyright measures 24/7, these rules also undermine due process protections by forcing providers to cut service to repeat offenders.

Copyright Term Extension & Criminal Enforcement

The current international copyright terms (as established by the Berne Convention) are 50 years after the author’s death for individual works and 50 years after creation for corporate works. The TPP would bind signatories to the current U.S. copyright term lengths: 70 years after author’s death and 120 years after the creation of a corporate work. Copyright was initially proposed to incentivize the creation of new forms of art; why create if someone else gets all the profits? However, terms that last for several generations are counter-intuitive to the initial purpose. Creativity and innovation are often made possible by building off previous works and the cost of making new works could become a huge entry barrier for smaller operations. This letter from 22 digital rights advocacy groups calls such copyright terms a “transfer of wealth in favor of large corporate copyright holders”, as they harm those who rely on the public domain (i.e. libraries, students, artists and writers) and further the likelihood of “orphan works”, those whose author is long gone and cannot be found to seek permission, rendering several works as “likely deadweight loss to the economy”. Due to the heavy price of royalties related to an extension of this size, one scholar estimated that copyright extension has cost Australia $88 million per year in royalties. Another concern is that such heavy copyright restrictions imposed under a trade deal of this magnitude could make it much more difficult for the United States to change our copyright policy down the road.

The U.S. is also pushing for a broad definition for criminal violation of copyright, including infringement for non-commercial purposes. The TPP would criminalize anyone who shares or otherwise makes available copyrighted works “on a commercial scale”, which, given how quickly memes can go viral, is quite a loose definition. The pact also requires that judges be authorized to order the seizure, destruction, or forfeiture of anything “traceable to infringement activity”. This clause further empowers law enforcement to take laptops and hard drives from suspects and even allows for the state seizure of internet domain names. Here’s the kicker: under the new terms, the government can act without a formal complaint from the copyright owner, meaning the government can take down internet content it doesn’t like, given it can be construed to have violated vast copyright restrictions. Censorship, anyone?

Another major concern for opponents of the deal is called Investor-State Dispute Settlement, a form of neutral, international arbitration. Break it down:

ISDS is a form of arbitration designed to resolve international conflicts without becoming a state-to-state conflict, protect citizens abroad and signal to potential investors that the rule of law will be respected. The United States is currently party to 50 agreements that contain ISDS provisions, including six of the TPP signatory nations. This sounds like a reasonable thing; it protects foreign investors from the corrupt laws of rogue states, is typically used as a last resort, and the U.S. has never lost a case. Here’s the problem: ISDS has been increasingly used by foreign corporations to dodge domestic courts and it may even be unconstitutional.

Here’s how it works: a foreign investor takes issue with a United States law, whether it be local, state or federal, claiming it violates their minimum protections under the trade agreement. The case is brought before a tribunal consisting of three attorneys; one picked by the investor, one by the U.S., and one is chosen by the first two attorneys. These attorneys are not appointed by any federal court, do not have to be U.S. citizens and often serve as arbitrators while also representing investors in other cases. Their decisions are final and not subject to judicial review, with the only solution being money damages based on expected future income ‘lost’ due to the regulation. The federal government is the sole defendant, even when the cases are levied against state or local laws, raising the issue of federalism. Alan Morrison, a respected law professor who has presented more than 20 cases to the Supreme Court, penned a letter to Congress, writing that the ISDS protections in the TPP “improperly removes a core judicial function from the federal courts and therefore violates Article III of the Constitution.” Morrison argues that ISDS outsources the resolution of challenges to U.S. law to private arbitrators, completely bypassing the judiciary. To further illustrate how this could be disastrous under TPP, Morrison provides this example: a foreign firm could challenge California’s water-restriction laws due to the drought, claiming it violates their minimum protections under the TPP. Now, these tribunals do not have the power to directly change domestic laws, but even through the threat of litigation can influence governments to proactively remove regulations, as Germany and Canada have done.

Lack of Transparency

Though these areas are rife with potential weapons for abuse, the most outrageous of the issues with the TPP is the complete and utter lack of transparency. No full text has been issued to the public; our only knowledge of this pact comes from leaked texts. Even members of Congress (after just recently getting access) have to go read the deal one chapter at a time in the basement of the Capitol Visitor Center, being watched over as they read and being allowed to take no notes with them. On the contrary, over 500 ‘industry advisors’ [lobbyists] from the MPAA and RIAA have been granted online access to the deal they helped write.

These are just a few of the points of contention the Diurna has with the Trans-Pacific Partnership, though they certainly cause serious concern on their own. With Congress set to vote on separate fast-track bills next week, this time is crucial to call your representatives and tell them what’s up. We’ve seen a trade deal favored by the President, the controlling party and corporate America beaten back by grassroots activism and old-fashioned public participation. Fight the current. You may complain about a rigged system all you want, but when the cog that dismantles it is out in the open, it’s your duty to expose it. Stand up for our democracy.

To read more from Jeb Kicker, please visit his site the Diurna where this article first appeared.