[Infowarrior] - Wikileaks leaks (secret) TPP IP treaty. Scary stuff.

[Richard Forno]

Wikileaks leaks SECRET copyright treaty: The Trans-Pacific Partnership

DMCA robocops link arms with Monsanto triffids to take over the world in revealed docs

By Richard Chirgwin, 13th November 2013  

http://www.theregister.co.uk/2013/11/13/wikileaks_posts_tpp_text/

The text of the secretive Trans-Pacific Partnership Agreement (TPP) isn't as bad as we thought. It's worse.

A draft, published by Wikieaks, offers a patent-and-copyright wish-list that would see the infamous DMCA automatic take-downs spread throughout the Pacific, plants and animals become patentable with few restrictions, and pharmaceutical companies empowered to tax citizens by way of patent evergreening.

With political candidacy off the table for now, Wikileaks has returned to the business of publishing leaked documents with a bang: it has posted the current negotiating text of the proposed Trans Pacific Partnership treaty.

The TPP is a document supposed to harmonise intellectual property protections in participating nations – America, Canada, Australia, New Zealand, Japan, Malaysia, Vietnam, Brunei, Singapore, Chile and Peru. Instead, it looks like a an Australia-US-Japan club force-marching the treaty into America's favoured position on nearly everything, from criminalisation of copyright infringements through to a blank cheque for pharmaceutical companies.

The document, here, is huge, but some of the key items include:

	• Criminalisation of copyright infringement by all signatories;
	• Stronger DRM and “technological protection measure” regimes;
	• ISPs to be made liable for copyright infringement on their networks;
	• A “take it down first, argue later” DMCA-like process for notifying copyright infringements;
	• Patentable plants and animals;
	• The evergreening of patents – this has become particularly notorious in the pharmaceutical business, where the repackaging of an out-of-patent medication is used to keep common compounds out of the public domain.

America and Japan are opposing consumer protections proposed by the other nations (Australia excepted). These provisions, in Article QQ.A.9, would be designed to prevent the abuse of copyright processes, use of intellectual property rights as a restraint of trade or as the basis of anticompetitive practises.

In Article QQ.A.12, Australia joins with the US, Japan and Mexico to oppose a mechanism for the international exhaustion of rights (meaning that different countries would still retain different dates for material to enter the public domain. America also wants pharmaceutical patents to be extended if there's a delay between patent publication and getting marketing approval for a product.

America has also asked that the treaty hide clinical data from the public eye, in Article QQ.E.16: it even demands that the existence of clinical data about a particular drug be hidden.

America manages to put itself beyond the pale as the sole sponsor of Article QQ.E.1, pretty much a “Monsanto clause” by pushing for patent coverage of plants and animals, including “biological processes for the production of plants and animals.” New Zealand, Canada, Singapore, Chile and Mexico want to specifically exclude these, along with “diagnostic, therapeutic and surgical methods for the treatment of humans or animals”.

Copyright crunch

Moving onto copyright: the treaty seems to include text, in Article QQ.G.4 to try and slap down the so-called “grey marketing” (currently legal at least in Australia) of works:

“Each Party shall provide to authors, [NZ/MX oppose: performers,] and producers of phonograms the right to authorize or prohibit the making available to the public of the original and copies137 of their works, [NZ/MX oppose: performances,] and phonograms through sale or other transfer of ownership.”

Alert readers might also wonder if this clause could stand as an attack on the “first sale doctrine”, at least as it applies to music.

America – with support from Australia, Singapore and Mexico – wants to export the duration of copyright (the “Mickey Mouse” law) to other countries, while New Zealand, Brunei, Malaysia, Vietnam, Canada and Japan want to retain the right to set their own terms for how long copyright should endure.

The leaked text puts out in the open the TPP's proposed hardening of “technical protection measures” (TPMs), and it's a work of wonder, seeking the outright criminalisation of things like “mod chips” – but at least, in a tiny nod to the legality (in some territories) of products like multi-region DVD players, Article QQ.G.10, at least doesn't demand that every product produced by every vendor in every country include technological protection measures.

The US and its lapdogs allies also want criminal punishments for circumventing TPMs to be “independent of any infringement” of national copyright law – in effect creating a new offence. It may be legal, at the moment, for someone to modify a device to play out-of-region DVDs (to pick an easy example), with no offence so long as they owner of the DVD player only uses it to play legally-purchased DVDs from another region.

The TPP, however, seeks to separate the two activities – so that even if someone never violated copyright by removing a geo-lock, they will have broken the law anyway.

Only Singapore and Chile seem to have their citizens' freedoms in mind, proposing in Article QQ.G.11 that TPMs that only exist to force market segmentation be exempted from the TPP treaty.

In Article QQ.G.13, the TPP also proposes extending the TPM regime to DRM, making it a crime to remove or alter any rights-management information from a work.

[The Register apologises that this looks something like reading out a charge sheet – but that's exactly how it seems.]

Even before all the lawsuits around Internet retransmission of broadcast TV is settled in its own country, America wants a Pacific-wide ban on the practise, in Article QQ.H.12: “no Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.”

Farewell the “safe harbour”

America and Australia – and only those two – have opposed the limitation of liability on ISPs for copyright infringements committed by their users (something which in the case of Australia has been settled by the High Court, in light of the legislation that now exists, in the famous iiNet trial). Canada has stood in favour of retaining “safe harbour” provisions.

The relevant Article QQ.I.1 is extensively revised and debated, but amounts to an MPAA/RIAA wishlist, most vigorously opposed by New Zealand (Australia is either silent in the debate, or stands next to America).

Australia and Singapore have joined with America to propose a regime very much like the DMCA's auto-takedowns, with rights-holders given the first-mover advantage in the process.

The proposed mechanism for opposing a take-down notice is a gem: if you think you've been unfairly treated in a takedown notice, you have to accept jurisdiction of “any court that has jurisdiction over the place where the subscriber's address is located, or, if that address is located outside the Party's territory, any other court with jurisdiction over any place in the Party's territory where the service provider may be found, and in which a copyright infringement suit could be brought with respect to the alleged infringement” (emphasis added).

We'll leave the permutations of this last item to our readers. ®

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