After the WikiLeaks release: what is the TPP? We are EFF, Public Citizen, Open Media, and more -- Ask Us Anything
The Trans-Pacific Partnership, or TPP, is a massive trade agreement that's being negotiated in secret by 12 countries across the Pacific. It has 29 chapters covering all kinds of regulations, and we only know what's in it based on outdated leaks and government statements.
But last week, we had a huge development. Wikileaks published one of the most controversial chapters of all: the one related to “Intellectual Property” issues. This leaked text, from August 2013, confirms long-standing suspicions about the harm the agreement's copyright enforcement provisions could do to users’ rights and a free and open Internet. This includes terms that would incentivize ISPs to police their users' activities (ISP liability) and enact criminal penalties against people for interacting and tinkering with their devices in new ways. Its monopolistic patent provisions also confirm that the TPP would have tragic implications for people's access to medicine and innovative medical procedures.
The next round of secret negotiations begin today in Salt Lake City and continue through the week. The next big meeting is taking place in Singapore in the beginning of December. Trade negotiators are going to try to finalize it at either of these meetings and pretend like they have a “framework” of agreement even if major swaths of it remain contentious.
So we're here today to answer your questions about everything TPP—the secretive negotiating process, our analysis of the provisions, and what the newly leaked IP chapter shows about how this agreement is a big corporate wish list for Big Content and pharmaceutical companies. We're here to share what we know about this agreement so you can help us stop it.
- Here is Wikileaks' page with the leaked text
- Read EFF's initial analysis of the leaked chapter
- EFF's Full TPP Resource Page
We're part of an international coalition of organizations opposing TPP's restrictive copyright provisions
Those of us answering questions today:
- Parker Higgins - ParkerEFF (EFF)
- Maira Sutton - MairaEFF (EFF)
- Daniel Nazer - DanielEFF (EFF)
- Danny O'Brien – DannyEFF (EFF)
- Krista Cox – kristay (KEI)
- Peter Maybarduk - PeteSystem (Public Citizen)
- Burcu Kilic - Burcuno (Public Citizen)
- Mike Masnick - Mmasnick (Techdirt)
- Steve Anderson - Steve_Media (OpenMedia.ca)
Update: That's it for us! Thanks so much for everyone's great questions.
We'll all be working hard to fight for your rights in the TPP and any other undemocratic, opaque policymaking venues. Remember to check back to our websites for ongoing updates on these negotiations, and consider becoming members or donating to our organizations so we can continue to do our work. Thanks again!
Hi Michael - thanks for your comments. Our understanding is that the US is pushing to finalize the draft treaty as soon as possible. With this timeframe it's important to let people know now what's in the TPP so that we can mobilize to stop it. Once people discover how the TPP will criminalize online activity they're strongly opposed. We're working with our partners across the region as part of the Our Fair Deal Coalition (http://ourfairdeal.org) to put a stop to these Internet censorship proposals.
The US Trade Rep continues to say that they're going to finalize this agreement by the end of the year. They may try to do so in Salt Lake City, but there's going to be a huge amount of pressure from the U.S. to do so at the big ministerial meeting in Singapore.
You're right in that there's limited amount of time to impact the terms of this agreement. But even if they finalize and sign it at either of those meetings, we can still fight it from getting ratified by our countries.
As maimz said, we're part of an international coalition of groups fighting back against TPP's draconian copyright enforcement provisions called Our Fair Deal. Our strategy is to get as many people aware of TPP's grossly undemocratic process as possible, and stop our elected representatives from binding our laws to this corporate wishlist of policies. Our lawmakers need to call for hearings, demand the release of the text, and get them to acknowledge that this kind of opaque, secretive policymaking doesn't carry legitimacy.
Hey Micheal -- Derechos Digitales is one of our local partners in Chile. They are doing a great job there. Please check http://www.derechosdigitales.org/
Could you explain it like I'm five?
The TPP is a secretive, extreme and huge trade agreement with 29 chapters - only 5 of which deal with actual trade issues. One chapter that we at OpenMedia like to call the "Internet Censorship" chapter focuses on criminalizing your online activity, invading your privacy, and costing you money (because of the extreme monitoring that Internet Service Providers would have to agree to under the agreement).
So what does this mean? It means that if you share a recipe online, you may be fined. If you download a song, you could be kicked off the Internet. You can learn more at http://OurFairDeal.org
revised for an actual five year old:
It is new extreme rules that says you go to jail if you play games or watch videos on your computer or phone. It let's police officers watch you while you use the computer. Your mom and dad will have to pay money if you listen to music on the computer and if you listen to many songs the police will come and take your computer. How they do this and how you can stop them-> http://OurFairDeal.org
nice work :)
The TPP is an international deal between Pacific nations that is being negotiated in secret (big corporations get access but the public is locked out). Although the TPP is considered a trade deal, the Intellectual Property provisions actually deal with domestic law (copyright, trademark, and patents).
Proposals found in the leaked draft would require countries to adopt many of the strictest provisions of US law. These include: 1) criminal penalties for circumventing 'technological protection measures' i.e. DRM (even for otherwise legal uses of copyrighted material); 2) long copyright terms; 3) steep statutory damages; and 4) super strict enforcement. This is all bad policy and none of it belongs in a trade deal.
More details here: https://www.eff.org/deeplinks/2013/11/tpp-leak-confirms-worst-us-negotiators-still-trying-trade-away-internet-freedoms
Would this treaty require implementing legislation? Would the Senate be able to use its treaty power to implement unconstitutional provisions? I.e., by using its power to form international agreements, would the government be able to effectively bypass a limitation on (or lack of constitutional granting of) power in a certain respect, e.g. unlimited copyright terms?
The US will likely argue that TPP is consistent with existing US law (whether that is true is another matter).
Assuming that as a five year old you don't like reading long texts, how about a movie?
Thanks for sharing this! That's EFF's animated video explaining why TPP is a huge threat to your digital rights.
We also have an infographic and a TPP WTF (actually Why The Heck) page that lays out the issues in the simplest way possible.
The TPP could censor websites and knock people off the Internet for minor copyright infringement allegations.
How precocious a five-year-old are we talking about, here? For a lot of background information, EFF keeps a (long-ish) "issue page" up to date with our biggest concerns. I'll give a real ELI5 attempt in a few minutes.
In your opinion, what is the most important (or intrusive) part of the intellectual property chapter for ordinary citizens?
Is there anything we can do as citizens to provide feedback on the TPP formation process? How can we help preserve freedom?
There are many important and intrusive aspects of the IP chapter for ordinary citizens. One of the first ones that springs to my mind, perhaps because of the recent controversy in the United States, concerns cell phone unlocking. If the United States proposal is accepted, there would be no way to make a permanent exception to the circumvention of a technological protection measure (a "digital lock") to unlock your cell phone and allow you to take your phone from one carrier to another, even when your service contract has expired. To do so would violate what the United States has proposed in the TPP. There are many examples of how digital locks have been used inappropriately and resulted in unintended consequences for the everyday citizen. EFF has a great paper called the "Unintended Consequences: 15 Years Under the DMCA" on this issue.
With respect to providing feedback, it's difficult to do without knowing what's in the TPP so we're fortunate to have had a leak of the text. However, it is important to push for greater transparency because we have not had many leaks and there are many chapters that could affect ordinary citizens that we have not seen yet. The secrecy is an undemocratic process and citizens should fight back against it.
One of the greatest challenges around the TPP has been to get access to the text - and to tell people exactly what's in it. Kristay hit the nail on the head - we need more transparency. Only then will we have accountability. So as citizens, we need to stand together and amplify our voices to ensure these backdoor deals don't get through. Preserve freedom by raising your voices! There are many ways. For one, you can join over 120,000 people who have said no to the TPP's Internet Censorship Plan (https://OpenMedia.org/Censorship). You can also share your opinions directly as a letter to the editor in your local newspaper (https://openmedia.org/letter) - and always make sure to spread the word so your friends, family, and networks know about the TPP.
Here's a link to the EFF paper Krista refers to, Unintended Consequences: 15 Years Under the DMCA.
While a large segment of focus has been on the IP chapter of the proposed agreement, what are the other sections that bear concern? And how is the creation of yet another closed shop trade bloc not in violation of WTO guidelines? Weren't we supposed to be opening things up in h'yah?
Let me echo Daniel's point about "investor-state dispute resolution" mechanisms. It SOUNDS boring on purpose. It's designed to make people think it's boring so they don't recognize what it is. What it really is is corporate sovereignty. It's an attempt to give companies extra-special rights to go above and beyond the laws of other countries.
An incredible example of this in current practice (under NAFTA) is Eli Lilly suing Canada for rejecting one of its patents. Eli Lilly is claiming that Canada rejecting one of its patents is a form of taking Eli Lilly's expected profits. Think about that for a second and you realize that this effectively eliminates the ability of countries to set their own laws -- so long as a foreign company can argue that any adverse law (not just IP, but health, safety, environmental, etc.) somehow takes away expected profits.
edit: correcting stupid typo.
I think you mean NAFTA, not NATO
Bah. Yes. Corrected.
At EFF we're focused on the IP chapter because it deals more with our core issues. Also, that's the chapter that just leaked. We don't have recent drafts of the other parts of the agreement.
Other worrying parts of the agreement include investor-state dispute resolution which basically elevates corporations to the status of nation states and allows them to bypass national courts. http://www.techdirt.com/articles/20130411/09574122678/investor-state-dispute-resolution-sleeping-monster-inside-free-trade-agreements-begins-to-stir.shtml
TPP isn't necessarily inconsistent with WTO guidelines. Trade agreements generally don't preclude other trade agreements as long as the new ones don't impose conditions inconsistent with the old ones.
why are big internet companies not getting behind a movement to protest or advocate against the tpp? Where is google, wikipedia, etc?
They've been somewhat vocal. The tech industry group, CCIA, which includes Google, Facebook, and Foursquare, has been critiquing some of the copyright provisions through the DisCo Project.
But you're right that they're been mostly silent. I have three guesses as to why tech companies been quiet on the copyright enforcement provisions:
1) Since the TPP is a trade agreement that covers wide-range of regulatory issues, it could be that they don't want to come out against it so they don't want to step on any toes by seeming like they're "anti-trade.”
2) They're pushing for provisions in another chapter on “E-Commerce” on the topic of data flows. There hasn't been a leak of this yet so we don't know its exact terms, but it threatens to carry language that treats user privacy laws like trade barriers. It could have fishy language that undermines protections for users to control their own data. Companies want to be able to do what they want with users' information since that's what they sell and trade for profit.
3) Many of those companies already have existing copyright takedown systems, may not want to put themselves on the line for the above reasons. But we feel that they should be challenging these laws, especially because the “intermediary liability” provisions unfairly puts the onus on them to privately enforce copyright. While we have some pretty good protections for those companies here in the U.S. (i.e. the safeharbor protections) we've already seen tons of problems where content is taken down and users are censored due to a system that incentivizes over-caution by these companies liable for their users' infringement.
What needs to be done to stop this from getting passed?
We need to stop fast track, for one. That is the mechanism by which Congress cedes its constitutional authority over trade policy to the executive branch. Fast track makes it easier for industry groups to ram bad policies through, via the Office of the US Trade Representative, with little Congressional oversight. Last week nearly half of Congress revolted against fast track authority, and we can build on that success. Members of Congress need to hear the message: no to fast track.
Secondly, we should push for transparency (the parties should release the text) and continue to reach new citizen networks with information about the dangers the TPP contains.
I want to second Peter's comments on Fast Track—right now, that looks like the most vulnerable place to attack the agreement. The administration has been negotiating as if it already has Fast Track Authority, so it would have to go back to the drawing board if it can't get it.
EFF has set up a tool to allow USians to contact their legislators and oppose Fast Track, and it makes a big difference if they hear from their constituents.
In sort - get as many people as possible to learn and speak out about this issue.
*Here's the biggest TPP petition about copyright/Internet censorship (120,00+ strong) *Here's a tool that makes it easy to send a letter to your local paper on the subject.
Who is telling the negotiators to make bad policy like this (Copyright extension!? Restrictive user covenants on devices?!) and what is the most effective thing I can do to deter such policymaker behaviour now?
On the current ITAC-15, there are zero consumer groups or academics. All of the groups on ITAC-15 represent private, corporate interests. Some of these advisors represent pharmaceutical companies like Gilead, Johnson and Johnson, PhRMA (the pharmaceutical association) and BIO, or are pro-copyright right holders like the Recording Industry Association of America (RIAA).
It's also worth adding to this that a few attempts to get more public interest, startup, innovation-focused people onto ITAC-15 have been directly rejected. Not surprisingly, the USTR seems to have little interest in sharing what they're working on with anyone who isn't ALSO a big corporate donor...
Most of the negative proposals in the IP chapter come from the United States. The decisionmaking process in Washington is driven largely by lobbyists and corporate and industry group influence. Hollywood and the RIAA have quite a bit of pull, of course, although this year we began to see some influence from the IT companies as well, which over time may change what the US Government includes in these agreements. Unfortunately, that won't happen before countries are locked in to the Big Content-driven TPP standards -- if the TPP passes.
It is also worth noting that several other countries in the negotiation have mounted heroic defenses of the public interest. There are superior alternatives to the US vision under consideration -- though the US will not agree to all of them.
I think Pete's point is really worth emphasising. EFF spent a lot of time working in Peru during the Lima round of the negotiations, and technologists there were really powerful in explaining to their government how the US line was not good for the emerging industries and Internet in Peru. Given that this is supposed to be a hard-nosed negotiation between countries, it shouldn't be surprising that those with big media companies would try and hoodwink other countries! But it needs local citizens to stand up and defend their right to a free internet and copyright laws in the public interest. Their public interest.
Over 600 Industry lobbyists have been invited to the negotiations while citizen orgs, key decision-makers, and the public have been left out. First, we need to tell people what's in the TPP. Much of that is getting access to the text! Many key decision-makers have been left out. In Canada, our own parliamentary Trade Critics saw the text of the document with the rest of us - when Wikileaks released it. In the U.S., those that have seen the text (such as Alan Grayson) have referred to it as a "punch in the face" but can't say more because they are legally bound to non-disclosure agreements. Third, we need to show negotiators that the public won't back down as secretive deals that are not in their interest are being pushed through.
The Industry Trade Advisory Committees (ITAC) are, through a "cleared advisor" process where only members of these advisory committees can see the text and influence the proposals. The intellectual property ITAC is ITAC-15.
Here are some of the horror stories I've come across on the web. Could you confirm that these are indeed true? I pulled most of this from the sites linked above.
Force Internet service providers to collect and hand over your private data to anyone without privacy safeguards.
Could this be expanded upon? Who can request the information? Could I go in and get my neighbours internet history?
See the Electronic Frontier Foundation's analysis to learn more about the ways the TPP increases the threat of litigation from Big Media. Under the TPP, Big Media could come after you in court even "without the need for a formal complaint by a private party or right holder".
So These are the guys who will sue grandma for $80,000 per song she downloaded who are about to get MORE litigation power? WTF citation - https://www.eff.org/files/filenode//EFF%20TPP%20TPM%20Analysis_0.pdf
Create a parallel legal system of international tribunals that will undermine national sovereignty and allow conglomerates to sue countries for laws that infringe on their profits.
How would this affect things like Supply Management)? I believe that this tariff is controlled by the Provinces, and so could any individual province say "Fuck the TPP" and keep Supply Management in place? Is this where the international tribunals could come in and sue the Prairie provinces for protecting their farming economy?
terminate your access to the Internet.
(Could anyone elaborate?)
This is seeming pretty shady, I hear it also bans Transactional Taxes, which proportionally taxes those who exchange money more often (read:banks) but typically at the rate of only 0.05%.
In my opinion this agreement is looking like another case of corporations jerking off corporations in the back room. That's a shame because a free trade agreement which is more forward looking and transparent, while less blatantly corrupt could be quite beneficial. Time to scrap this one and try again.
For my fellow Canadians: Currently, Canada’s Copyright Act criminalizes certain types of copyright infringement for profit. TPP would expand this to cases without any direct or indirect motive of financial gain, as well as cases of aiding and abetting, which could be applied to internet service providers. - http://infojustice.org/archives/9508
Per the "international legal tribunals" -- this is a reference to investor-state dispute settlement, a primary enforcement mechanism for the many rules in the TPP. Yes, via this system corporations sue governments for health, environment, consumer and other regulations. See http://www.citizen.org/investorcases for much more information, and some frightening ongoing cases.
Eli Lilly has just sued Canada for $500 million under this investor-state system (using NAFTA), for Canada's rightful (we believe) invalidation of a Lilly patent.
On the "terminate your access to the Internet" point:
The United States has proposed a "graduated response" system. The specific language used would require ISPs to "adopt and reasonably implement a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers." This means that in order to be eligible for the "safe harbor" provision, an ISP could be required to cut off users from the internet who are found to have been repeat infringers. Such termination, according to the UN Special Rapporteur on Freedom of Expression, Frank LaRue, would violate human rights.
Regarding "Force Internet service providers to collect and hand over your private data to anyone without privacy safeguards."
This is true. The United States' proposed a provision that requires ISPs to hand over information identifying the alleged infringer to the rightholder. What's missing in the proposal in the TPP is the safeguard that exists under the DMCA that states that the alleged infringer must also submit an affidavit ("sworn declaration") that he will only use the information for purposes of enforcing his rights under the Copyright Act. This safeguard helps protect against abuses in the system, for example, a rightholder seeking the information of an "alleged infringer" not to pursue an infringement claim, but rather, to harass a business competitor.
1.) Why are the countries involved unifying based on their geographic proximity to the Pacific ocean? (It seems like some European countries would want to get in on this.)
2.) Will the TPP have to go through Congress at any point?
1) The Trans-Pacific Partnership Agreement's design is to include parties in that region. It is intended to eventually cover the entire Asia Pacific Economic Cooperation (APEC) region, so it would (I imagine) first be limited to those APEC member countries. There is another trade agreement currently being negotiated called the "Trans-Atlantic Trade and Investment Partnership" or TTIP (also known as the Trans-Atlantic Free Trade Agreement, or TAFTA) between the United States and the European Union.
2) Possibly. Theoretically, Congress has to ratify treaties. However, there is a push by the Obama Administration to obtain what is known as "fast track" authority (also known as "trade promotion authority") which would mean that Congress would only be able to vote on the TPP in an up-down vote. At this point, it is likely too late to make substantive changes in the text, particularly when there are 11 other negotiating parties. This is one of the reasons why it is so important to push back against fast track authority.
1) Because (historical) reasons, mostly. Multilateral trade agreements like this tend to start from small seeds, and then pick up countries and policies as they go along. Even fairly late in the day, TPP was getting new countries such as Japan. The larger they get, the more cumbersome it is to get an agreement however.
Europe is just starting their own transatlantic trade agreement, TTIP (or TAFTA) . We can expect many of the proposals in TPP to be exported into that agreement, just as much of TPP's IP proposals come from ACTA and agreements previous to that.
2) It will -- but if Fast Track is in place, Congress will only have a chance to vote "yes" or "no" on the whole of the treaty (ie they can't reject or question say just the IP chapter). You can write to Congress to ask them not to give up their own democratic powers at our action center.
Steve, what can Canadians do to pressure our government to push back harder? Who do I write to? I know that our negotiator(s) have already been pushing back some, so what are the areas they should be resisting, but aren't?
Hi Mike - Sending a letter to the editor of your local newspaper is a powerful way to spread the word. We've created a tool to simplify the process and make sure your voice gets heard - you can check it out at https://openmedia.ca/getpublished
We're also encouraging Canadians to contact their MP to underline that we need to see a firm public commitment from Prime Minister Harper and Trade Minister Ed Fast that they will reject the Internet censorship provisions in the TPP
Do you think that the complexity of this material makes it difficult to get traction in fighting it?
Honestly, most of this goes way over my head. I am concerned, mostly, because of the secretive nature and corporate power aspects but the details are a bit overwhelming.
I think the government and the corporations count on the complexity of this kind of thing to allow it to stay under the radar. How do you combat that?
I think it's totally fair to say, leaving aside the content of the agreement, that law simply should not made in secret. It's a way special interests lock in unpopular laws that could not be implemented through an open process. This is called 'policy laundering.' www.publicknowledge.org/blog/tpp-and-policy-laundering
Defenders of the TPP respond that trade deals have always been negotiated this way. But that's no excuse. And, as far as its IP provisions go, TPP is not even a trade deal - it deals with domestic law (copyright, trademark, and patents).
We saw a massive online outcry against both SOPA and ACTA that really caught lawmakers and lobbyists by surprise.
Now it seems like they're recycling the same policies we don't want into another package, and doing an end run around democracy to get this into law.
Is public outcry more muted against the TPP because it hasn't been covered in the media? Because tech firms are keeping quiet? How can we make this a bigger issue in the press?
With the amount of bracketed (still under negotiation) text in the leaked draft, what are the chances of this agreement being concluded before the end of the year? Do you think the Snowden revelations caused countries to be wary of the USTR's intelligence on their negotiating positions?
Much of the language that was in ACTA has been agreed to in the text of the TPP (and is unbracketed text). It's unfortunate that lessons have not been learned from the ACTA experience, but many of the countries currently involved in the TPP negotiations also negotiated ACTA.
I think that more media coverage is definitely needed. At a recent event I was at on access to medicines, I asked the audience how many people had heard of the TPP...only about three people raised their hands.
First of all, much of the public outcry was muted because the whole thing was secret and no one quite knew for sure what was in there. This was done on purpose. Second, and also done on purpose, TPP is designed to SOUND BORING. It uses boring phrases and acronyms to make people tune out -- even when the matter is quite serious.
Public outcry is muted so far. But we should remember that the public outcry to SOPA and ACTA (especially) were quite muted early on.
As with both of those earlier things it's important to get the word out on what is happening here. Make a lot of noise -- and use things like Reddit to spread the word. It cannot be overstated how important Reddit was in both SOPA and ACTA...
What does the TPP mean for the future of the internet?
The future of the open Internet is at risk - sharing, collaborating, innovating could all suffer greatly should the TPP go through as is.
Please don't downvote me for my ignorance. Could someone explain what wikileaks is exactly?
WikiLeaks is, generally, a web site that accepts secret information—usually anonymously—and works to publish it in full. In this case, it looks like somebody obtained a copy of the secret "Intellectual Property" chapter of the TPP and passed it on to WikiLeaks to take care of the actual publication and hosting.
How do you plan on stopping this?
Our plan to stop the TPP is simple: tell people what's in it.
If this sounds trite -- it has worked before. See e.g. ACTA and the Multilateral Agreement on Investment, not to mention the WTO battle in Seattle. The US Trade Representative's office comes right out and says that the reason they will not release the text is because that would make it difficult to conclude the agreement.
Hi there, thanks for doing this.
I'm an independent creator/artist and I've been trying to wrap my head around the text, but have been struggling a bit.
My main concern is about the "Three-Step Test" of fair use. Could you elaborate on what effect the current language would have/what limitations would occur compared to the current state of affairs?
If examples of the concerns help, a friend of mine has been doing illustrations based on "Animal Farm", my understanding of the leaked information is that transformative work like that would be restricted. And I myself have been working on a re-imagining/"sequel" of Peter Pan, and my understanding is that I'd be restricted based on the expanded copyright terms (pulling it out of the public domain) and then the changes to fair use.
Are those understandings correct? Or is there a general idea of what will occur, if the TPP goes through, on creating/remixing?
It's unlikely that Peter Pan will get pulled out of the public domain. If there is an extension of the US copyright term (which we would fight very, very hard whether it comes up in TPP or otherwise) it would most likely be prospective but not retroactive.
There is a concern that the Three Step Test will make it harder for nations to expand their fair use and fair dealing protections - i.e. it will set a ceiling for protection rather than a floor.
Note though that Peter Pan has a strange, prolonged copyright status in the United Kingdom and elsewhere, to match the strange prolonged childhood of the central character.
I wrote about the three step test here and why it's problematic here: http://www.techdirt.com/articles/20120804/00173819933/tpp-text-fair-use-leaks-us-proposals-are-really-about-limiting-fair-use-not-expanding-it.shtml
Hopefully that helps. In short, it's a trick. The USTR promoted it as "the first time" that it had ever included "exceptions" in a free trade agreement. But, as you can see, what they're doing is using what had been "the floor" of previous agreements and turning it into the "ceiling" here. It's a really sneaky trick. Pretend that they're pushing for user rights, when they're really locking down those rights by not allowing countries who sign on to be more flexible in user rights.
Related to this: pay close attention to the language. Negotiators like to talk about "exceptions and limitations to intellectual property" when they talk about things like fair use. But what are those? Those are actually the RIGHTS OF THE PUBLIC. They aren't "exceptions," they're basic rights that are being taken away.
Not a question but I like your stickers. Thank you for your work!
Thanks! In case you're just talking about EFF here, you should check out the other groups involved in this AMA: KEI, Public Citizen, Open Media. All doing really important work, and some great stickers across the board.
Here's some links to find out more: KEI, Public Citizen and Open Media.
And the KEI page on TPP (needs some slight updating to include recent blogs after last week's leak of the text): http://keionline.org/tpp
What is the most unsettling part of this release to you all?
Speaking personally -- that it happened this way at all. We're now at the point where two of the biggest issues that EFF covers -- NSA surveillance, and global intellectual property and internet regulation -- now rely in large part on the work of whistleblowers for public debate and analysis.
TPP is a text that will affect millions of people. Worse, with Fast Track operating in the US, even Congress would have had almost no input in their content. It's more than unsettling that this is business as usual these days.
I agree with Danny's comment on the undemocratic process. If I had to pick the most unsettling provision of the TPP, I'd vote for investor-state dispute resolution:
Am I reading this wrong .. Seems like it's giving corporations enough power to ignore a government? I mean that's a blatant way for me to state it, it just looks like more room to skirt laws..
It gives corporations a way to directly challenge a nation's laws, regulations, or court decisions, on the basis that they are inconsistent with the TPP and cost the corporation lost profits.
For example, Eli Lilly sued Canada using NAFTA's investor-state dispute resolution system after Canada's courts invalidation of a Lilly patent. https://www.citizen.org/eli-lilly-investor-state-factsheet
Just to clarify, if this was ratified, nations would have to adopt the IP laws in the TPP in place of IP laws they already have? Doesn't that amount to a trade agreement taking priority over national sovereignty?
Just to add, they would have to comply with the laws of the TPP and if not, they could be sued. The investor-state provisions of the investment chapter (if agreed to) would not only allow one TPP country to sue the United States (or any other TPP country for that matter), but would also allow private investors/corporations to sue state governments for violations of the TPP.
Yes - the TPP would override national laws that countries already have. Here in Canada a lot of thought was put into crafting balanced copyright laws - and these would now be overturned due to the extreme proposals in the TPP. Professor Michael Geist is doing a series about this on his website at http://michaelgeist.ca
What specifically protects pharma companies? I think it's ridiculous how much power they have, what would give them more?
Are you asking what in the TPP would protect pharma companies or how they have this influence?
If it's the former, if the United States proposals are accepted additional protections beyond what is required by international law would be given to these companies that would lengthen/strengthen their monopolies (allowing more patents, extending the term of the patents, and creating additional monopolies, among other things).
If it's the latter, the "cleared advisor" process allows for some right holders to see the text and comment on it, while the general public is left in the dark unless we obtain any leaks. This means that when USTR is deliberating and drafting its proposals, the only ones able to see and influence the text are the right holders, including pharmaceutical companies, that are on the "cleared advisors" list.
The US is pushing for a provision that would prohibit denying “a patent solely on the basis that the product did not result in enhanced efficacy of the known product.” (Just about every other nation opposes this language.) Pharma wants this language to help them 'evergreen' monopolies on drugs ... http://aids2012.msf.org/2012/the-trans-pacific-partnership-agreement-evergreening/
So basically you wouldn't have to prove the drug does anything new in order to patent it?
Am I crazy or is this like granting a new patent on an car because you changed the paint color?
You'd have to prove it does something new - but you wouldn't have to prove it does something better. Suppose you came up with a new way to deliver a drug that made it dissolve faster in the body (but this had no medical impact). Nations should have discretion in how they want to deal with this question. The issue doesn't belong in a trade deal.
Also, you're not crazy.
Is it legal? If lobbyists are allowed to have input to it but the general public isn't, is it legally binding?
The extreme secrecy around the TPP is one of its most worrying aspects. Just 600 old industry lobbyists have had access to the talks - while citizens and public interest groups have been totally excluded. To become binding the TPP needs the assent of all 12 participating countries - that's why it's so important that citizens speak out and stop this now, while we still have a chance.
Actually, I think that to become binding it may require less than the assent of all 12 participating countries. Although I don't know if it would happen this way, a couple countries could decide not to be a part of the TPP anymore and in that sense, less than the current 12 countries would be needed. In the United States, once it is passed through Congress (regardless of the final number of countries and regardless of the track under which Congress approves it), it will be legally binding on the United States and enforceable.
Unfortunately, that part of the process (the lobbyist access) has little to do with determining how legally binding it is. In the US, it needs approval of Congress (it's not considered a treaty -- which would require 2/3 Senate approval), but rather a "trade agreement" which requires majority of both Houses of Congress approval. If that happens (and enough other countries agree to it as well), then it becomes a binding agreement. While, in theory, Congress can then pass laws that violate the agreement there are significant consequences for doing so.
This is, in part, why Congress should not give the USTR fast track (or "trade promotion") authority. That effectively takes Congress's ability to reject or challenge parts of the agreement out of their own hands. It makes no sense for Congress to give up its own powers -- especially for an agreement basically negotiated on behalf of a few hundred lobbyists and kept out of view of both Congress and the American public.
I have heard whispers that the TPP seeks to effectively ban fracking bans. Is this true and if so, what is the enforcement mechanism that would allow this to happen? Thank you greatly for doing this!
Investor-state dispute settlement (ISDS) is one such enforcement mechanism in the TPP. An earlier version was included in NAFTA, and Canada is being sued right now in an ISDS fracking case: http://www.nytimes.com/2013/11/15/opinion/how-a-trade-pact-could-harm-the-environment.html?_r=0
Any indication that WL has the other chapters?
No such indication.
What can we do to make our Governments accountable, transparent and humanity-focused? They seem to have their own agenda and our vote seems to be an illusion. Their 'Power and Privilege' exploits and vetoes 'Truth and Justice' and goes against common-sense, environmentally sound practices and human rights. 'Frustrated' with the ignorance that has no limit.
We must get our governments to understand that having a secret negotiation where the text is secret to the public, but fully transparent to the corporations, is a completely undemocratic process that de-legitimizes the entire agreement. In my opinion, a big reason why ACTA failed (aside from many of its substantive provisions) is that there was no public buy-in on the text due to the large secrecy. By the time ACTA text was officially being released, it was too late and the public was not satisfied because of the huge lack of transparency. Make your voice heard so that your government knows that this kind of secrecy (one-sided secrecy) is completely unacceptable in a democratic society.
Can we reasonably expect to see another overwhelming rejection of the TPP like we saw for SOPA? Or did we shoot the entirety of our wad back then?
It took a really long time for SOPA to pick up steam -- over a year. I've seen TPP on the Internet go from people saying "is this something about toilet paper?" to strangers at hackerspaces and geek conferences grilling me over the details.
One of the challenges, and this was also true of SOPA/PIPA, is that in order for people to get upset, they need to know what they're facing. In my more cynical moments, I think that's the majority of the reason why TPP is so secret: because by keeping the details vague, you give people no obvious target to know or care about. By the time the treaty is public, it's already signed and there's no time to push back.
That said, that's what they thought about ACTA, and the fierce reaction against that after it was made public was enough to sink it.
How much about the TPP do you think that we dont know?
WikiLeaks published one draft chapter, 94 pages long. That single chapter would restrict access to medicines, cultural and educational resources and internet freedom in many of the negotiating countries. It would require countries to allow for the patenting of surgical methods, plants and animals.
There are reportedly 29 TPP chapters. We are missing 28. That's how much we don't know.
Of course, the trouble is -- it is hard to know what one does not know. But prior trade agreements are a guide, and the TPP seems to be considerably more expansive and aggressive in a number of areas of citizen and consumer interest.
But prior trade agreements are a guide, and the TPP seems to be considerably more expansive and aggressive in a number of areas of citizen and consumer interest.
A helpful partial list of TPP issues is available at: www.citizen.org/tpp. It is fair to say that the TPP is more aggressive in the area of patent rules as well as "Healthcare Transparency" -- which means opportunity for Big Pharma influence government medicine reimbursement and pricing commissions -- than prior agreements. The Korea-US agreement was very aggressive, but applied only to those two high-income countries. The TPP, by contrast, includes four to six developing countries, and may incorporate more over time.
The TPP's investor-state dispute mechanism expressly covers more subjects than past agreements, as I understand it. There are new rules on data flows and e-commerce, and annexes on various consumer products I don't believe we have seen before.
Here is a list of TPP leaks (not including the WikiLeaks publication): http://www.citizen.org/leaked-trade-negotiation-documents-and-analysis
There are a number of areas in the very long text where the US proposals go beyond what was in previous FTAs or may even be inconsistent with US law: http://keionline.org/node/1216
Here are two specific examples: 1) As Peter noted above, the US has never included in any of its past FTAs a requirement that parties patent plants and animals, diagnostic, therapeutic and surgical methods (in fact, in many past FTAs, these things were carved out). The leaked text shows that the US has modified its proposal regarding diagnostic therapeutic and surgical methods from its February 2011 proposal, but it is still dangerous. 2) In last term's Supreme Court ruling in the Kirtsaeng v. John Wiley & Sons case, the Supreme Court held that parallel importation is permissible under the US Copyright Act. This means that once a copyrighted good has been lawfully sold anywhere in the world, the right holder no longer has rights to that good and it can be re-sold (or imported into another country). Despite the Supreme Court decision, the leaked text reflects that the US has not backed off its proposal.
Explain to me: what is the internationally recognized 3-step test for fair use? If a standard for fair use is implemented through international agreement, would that supersede 17 U.S.C. 107?
The "three-step test" is language that has been found in international agreements, including the Berne Convention, the TRIPS Agreement the WIPO Copyright Treaty and others. However, the United States' fair use system is not necessary viewed through the lens of the three-step test. This is because there are numerous specific limitations and exceptions that exist in these international agreements (for example the so-called "Berne exceptions") that do not have to comply with the three-step test. Many of the United States' fair use elements actually fall more into the category of these specific Berne exceptions, for example with regard to criticism, commentary, or some educational purposes. But certainly, one of the concerns regarding the TPP text on limitations and exceptions had to do with whether the three-step test would be read to apply to all limitations and exceptions (including the traditional "fair use" exceptions that have been upheld).
There's a post currently making the rounds (and currently on TechMeme) entitled "Obama's Secret Attempt to Ban Cellphone Unlocking, While Claiming to Support It" . How accurate is that statement, or the article more generally?
The article is accurate. The White House, in response to a petition of more than 114,000 protesting the loss of an exemption on cell phone unlocking, stated that it supported allowing consumers to unlock their cell phones and switch carriers. What the US has proposed in the TPP is a closed list set of limitations and exceptions, with an administrative or legislative procedure to add additional exemptions but only for a three-year period. In the US, we call this the DMCA three-year rulemaking process. If the US gets what it has asked for in the TPP, new permanent exemptions would not be allowed; it could only be done through the rulemaking process which, in the US, involves a long and resource-consuming process and must be renewed every three years.
Are we seeing the kinds of support from places like Wikipedia And Silicon valley opposing TPP that we saw for opposing SOPA in the past?
There are some web companies like Tucows engaged - they were involved in the SOPA fight. You can see some other companies in the Our Fair Deal coalition: http://ourfairdeal.org
However, so far the bigger players have not been engaged publicly on the TPP. Our hope is that if enough people speak out the bigger players will know they have the support they need to step out on this issue.
While many IT companies are concerned about copyright maximalism, some companies also hope to win some TPP favors in the area of data flows. This adds a layer of complexity to the TPP negotiation that may have been absent during the SOPA debate.
Hello. Thank You for doing this. I am very discouraged about all of this. It seems that between Bills in Congress, the NSA, and the TPP, there have been a lot of people trying to control the internet and restrict content. I think a lot of people are tired of it but I don't think it will stop anytime soon. Post TPP, isn't there anything we can do to better put these things down before they start?
It may be hard to see if what you get are irregular updates and action alerts, but from my position of working on these issues full time, I can say it really matters when people speak out. But keeping yourself informed (and yes, part of that is following EFF on Twitter, Facebook, email, etc) will give you the inside track on what strategies we think will be best for user rights, and what you can do to support them.
When I talk to my Representative what do you think are the most important talking points that I should bring up? I for the most part have been more interested in the internet censorship and policing aspects.
I would bring up Bill C-11, the copyright reform act that was passed in Canada after about a decade of debate. More info here.
While Bill C-11 wasn't perfect, it enacted all kinds of new user-protections including establishing rights to allow people to legally make back-ups of digital content, a cap on financial penalties for copyright infringements (so people don't get slammed with $10,000's in fines for downloading an album), and removed laws that could lead to users getting disconnected or content taken down for allegedly infringing copyright.
The main question is how TPP would undermine these reforms. The leak last week revealed that Canadian negotiators are holding strong against the U.S. in their demands for copyright enforcement measures that are worse for users. You can ask what you and your representatives can do to support the Canadian trade negotiators that are standing up for your rights.
It sounds like the TPP is mostly interested in regulation for the intent of protecting copyright. Are there plans to regulate purely on obscene content, as David Cameron's government seems inclined to do?
There's lots of other stuff in the TPP. But only the IP chapter was leaked.
Unlikely there's anything about obscene content in the TPP (of course, since most chapters remain secret it's impossible to be sure). It's not really a trade issue (though, neither is domestic copyright law). And it would also raise difficult First Amendment issues for the US.
What do you make of the USTR's proposals in respect of heightened protection of trade secrets in the Pacific Rim? What impact will such an approach have upon business and government, the freedom of the press, and whistleblowers?
Is this Dr Rimmer of ANU? I'd defer to you on this!
If the TPP is agreed to by our unscrupulous politicians, what is the fastest/best means of getting it revoked after the fact?
Is there a list of politicians that need to be ousted and replaced to streamline this process? Is there any sort of policy that can be enacted to prevent this type of secrecy in negotiating international treaties from occurring in the future?
Most international agreements include a process for withdrawal (and even those that don't can simply be disclaimed). But, as a practical matter, it is very, very difficult to undo a trade agreement. For now, the focus has to be on stopping the TPP.
The best way to stop the TPP (and the secrecy) is to oppose Fast Track:
Who is involved in Salt Lake City and why have it there? As a Utah local that concerns me.
The Salt Lake City negotiations involve the top negotiators from each of the participating countries. It looks like organizers are going to even more extreme lengths than before to ensure civic interest groups are preventing from having their say - so as a Utah local you should certainly be concerned. Please consider spreading the word by writing to the Salt Lake Tribune using our letter to the editor tool at https://openmedia.org/getpublished
Pretty much any of the chapters that haven't closed out yet are meeting. Although they're calling it an intersessional or meeting with chiefs, it's more accurate to say it's a mini-round of negotiations -- though without stakeholder engagement days (such as briefings or a day for stakeholder presentations). The IP chapter is meeting, of course, along with several other chapters.
Future looking: How is the EFF working to prevent closed-door 'agreements' such as the TPP from happening in the first place?
Well, first there's plenty of organizations at work here, including the great groups answering questions here -- KEI, Public Citizen, Open Media. The great thing about coalitions is that you concentrate on different strategies.
One of the more important but hard to explain strategies, which you can actually see at work in the current leaked IP chapter, is to explain to politicians and negotiators exactly what is going on in proposals such as those from the United States. You have to remember that ten to fifteen years ago, there was a very strong sentiment in international circles that more IP was better IP -- that the fiercer enforcement was, the longer copyright terms were, and the more sectors were covered by IP law, the richer everyone would become. The overpowering narrative was countries like the US saying "you better 'improve' your IP law, or we'll not grant you good trade breaks."
That's changing, and it's changing partly because of groups like EFF, KEI, Public Citizen, OpenMedia + many others sitting down with negotiators and explaining how maximalist IP rules can actually damage economies, and smother emerging industries; how actually the economic and creative giants and Internet startups of the US and elsewhere grew out the permissions of copyright, not its restrictions.
It's slow work, but it's not impossible. Negotiators are getting cannier. Unfortunately, they're almost always cut off from being able to talk openly to critical voices, because of the secrecy of the agreements.
Of course, politicians and negotiators need to know that they're being kept in the dark -- which is where writing to your own legislators is so important. They just don't know this stuff is important or contentious until you tell them.
How do we get our lawmakers here in the US to listen to us on this? For that matter can we create a comprehensive list of politicians based on their current position on TPP?
We know that Members of Congress pay close attention when people speak out in their local districts. One of the best ways to get lawmakers to listen is by sending a letter to your local newspaper - we've a tool to get you started at https://openmedia.org/getpublished - it's very straightforward. You can also try phoning or writing your Congressperson and Senators to ensure they get the message.
I'm a US citizen living in the EU (but not in a country listed as one of the negotiators of TPP). What can I do as a US and/or EU citizen?
As a US citizen you can write to your Congressperson and Senator. You can also send a letter to your hometown newspaper using our tool at https://openmedia.org/getpublished - just enter your home ZIP code and it will bring up your newspaper automatically. As you live in the EU you'd be in a strong position to express concern about the damage the TPP is doing to US reputation overseas.
Thanks for informing us about the impact of the TPP I'm wondering - why did the TPP begin - what's the purpose - what are the goals - why is this happening exactly?
Is this like a NAFTA on steroids sort of thing?
That is what we call it, yes. The TPP is also a part of the Obama administration's strategic redirect of US foreign policy toward Asia (away from the Middle East). It is the signature economic policy of this pivot. Unfortunately, it's not predominantly about what most people think of when we say "trade." Tariffs are part of the deal, but so is economic deregulation and corporate protectionism. And there are 29 chapters of it.
Old media conglomerates in the U.S. have been pushing for these kind of extreme rules for years now - the TPP is their latest vehicle for doing so. That's why they've been going to such extreme lengths to lock out citizen input from the process - these conglomerates know that citizens care about the open Internet and when they find out what's going they'll be strongly opposed.
We see a lot of talk about the TPP regarding the digital implications. Is there a good list of the ways this will affect others beyond the digital realm?
I think it's such a large agreement that the general non-policy-geek population could use a simple guide.
Yes, absolutely. Please see http://www.citizen.org/TPP for a list of and resources about the many public interests threatened by the TPP.
How do we know whom to vote out-of-office for these shenanigans?
You may be interested in this survey (responses by NGOs and academics, all of one of whom have been to TPP rounds) on USTR officials involved. This survey covers the new USTR Michael Froman, Chief Negotiator Barbara Weisel, and two technical IP negotiators, Stan McCoy and Probir Mehta: http://keionline.org/node/1818
You can see what NGOs and academics who have actually been to the TPP rounds and met with the USTR officials think of each one.
In the US, I believe the Citizens Trade Campaign (CTC) can provide guidance.
Why aren't countries like NZ and Canada (with Berne copyright terms) pushing back stronger against the US and Mexican proposals for a Mickey Mouse copyright term extension in the Pacific Rim?
There are a number of countries that have pushed back on the copyright term extension. New Zealand, Brunei, Malaysia, Vietnam, Canada and Japan have proposed alternative text on copyright term which would provide that the copyright term is determined by national legislation and international agreements that they are party to. What will ultimately happen, particularly at the chief negotiator or political level, though, is uncertain and those countries with Berne copyright terms may end up with the ridiculously long terms...
Not sure - I'd guess they don't feel much pressure to support the public domain in a forum where the public is locked out.
Another question is why would Mexico propose a life plus 100 copyright term?
Or why would Mexico have in its copyright system a term of life plus 100 years?
Thank you for everything you do.
Thank you for the support!
Is the TPP really a necessity?
Some parts will be more useful than others. It's a huge sprawling agreement—29 chapters altogether—and it's possible it will have some good effects on some aspects of trade.
But the "Intellectual Property" chapter that we've seen, and the copyright section of that in particular, is largely useless. It exports US copyright law to countries that don't want it, and turns the screws on the laws domestically. It's hard to argue that countries aren't best served by flexibility in figuring out what laws work best for themselves, instead of getting policy dictated to them by a secretly negotiated international agreement.
In what way will this affect Canada, and what can we do as Canadians to try to stop it, and any other future acts such as this?
These things keep coming out. SOPA, ACTA... now this... is there something once and for all that can be done to squash this for good?
Here's a post we made about how the TPP will affect Canadians: https://openmedia.ca/blog/what-canadians-need-know-about-tpps-internet-censorship-plan-0
In terms of stopping these internet censorship initiatives the TPP is a key battle -- they've been stopped domestically and in treaty form (ACTA), now we unfortunately need to make it clear that we won't accept these proposals as part of trade agreements. You can contribute to that effort in Canada by sending a letter to your local paper: http://openmedia.ca/getpublished
And of course signing and sharing the big petition at: http://openmedia.org/censorship
In the UK, George Monbiot wrote of investment clauses: 'Investor-state rules could be used to smash any attempt to save the NHS from corporate control, to re-regulate the banks, to curb the greed of the energy companies, to renationalise the railways, to leave fossil fuels in the ground. These rules shut down democratic alternatives. They outlaw leftwing politics.' How should we deal with investment clauses in the TPP? Should they be excluded entirely?
The TPP grants a set of extreme foreign investor privileges and rights to multinational corporations through the notorious “investor-state” system. This system elevates individual corporations and investors to equal standing with each TPP signatory country's government. Under this regime, foreign investors can skirt domestic courts and laws, and sue governments directly before tribunals of three private sector lawyers operating under World Bank and UN rules to demand taxpayer compensation for any domestic law that investors believe will diminish their "expected future profits." Over $675 million has been paid to foreign investors under U.S. trade pacts, while over $12 billion in claims are pending on environmental, safety, and public health policies under U.S. trade deals. For more, please check Public Citizen's Global Trade Watch webpage on investor- state disputes http://www.citizen.org/Page.aspx?pid=5329
What is data protection? Why are the USTR, PhRMA, and BIO so keen on this sui generis form of IP protection? What would be the effects of enhanced data protection under the TPP?
There is a worrying trend to associate data exclusivity to data protection system introduced by the TRIPS Agreement, which protects undisclosed market registration data against disclosure and unfair commercial use. On the other hand, data exclusivity prevents FDA to rely on the originator’s data when registering a generic version of the same product & creates a de facto market exclusivity. The US IP proposal provides at least five years exclusivity for information (not only data) related to new products and three more in cases of new uses for old medicines - even that information is in the public domain.
In public forum debate about the TPP, using what has leaked and the august resources provided by your organizations, it can be frustrating when those supporting the TPP make a nice, cozy little nest for themselves out of 'free trade' and lay claim to the benefits of global collaboration.
Who or what institution can we look to that're going after increasing trade perhaps more fair than free, or negotiating cross-border agreements with an eye more toward progress than profit?
One alternative to the TPP and other corporate-driven approaches is the TRADE Act. See: http://www.citizen.org/Page.aspx?pid=454.
At least in Japan, the trade aspects themselves seem controversial enough, why not release those parts? Were they not available?
We only have access to what is leaked. Leaks are often infrequent and we are lucky to get them. There have been several leaks involving intellectual property or pharmaceutical-related issues, as well as a leak on the investment chapter. The other chapters simply have not been made available through leaks and because of the extreme secrecy of the negotiations, the general public doesn't have access to other parts of the text.
Hi - great that you all are doing this AMA. My name is Michael Karanicolas, and I'm a lawyer with the Centre for Law and Democracy, a Canadian-based NGO that has also been engaged on this issue (you can read our preliminary analysis of the leaked TPP draft here: http://www.law-democracy.org/live/copyright-provisions-in-tpp-threaten-freedom-of-expression/).
We're currently in the process of preparing a full legal analysis of the draft, but I wanted to ask about what you know about the December negotiations. I know the process is shrouded in secrecy, but is your understanding that the idea is to finalize the draft treaty in Singapore? If so, there's a limited amount of time to impact change. What is your advocacy strategy for the immediate term, and do you have any plans to coordinate a campaign with likeminded organizations in other TPP countries (Chile, Mexico, etc.)?
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