Post Wikileaks Shows What’s New and What’s Old About the Trans-Pacific Partnership Agreement

What have we learned from the Wikileaks reveal of the Trans-Pacific Partnership? We’ve learned that our trade negotiators are secretly sticking to an agenda that is being increasingly questioned by the public, Congress, and other branches of the Administration.

The secretive negotiations around the Trans Pacific Partnership (TPP) Agreement have been raising questions about what the administration is demanding other countries put into their IP laws. With the recent leak of the IP chapter via Wikileaks, one of the biggest questions is what new revelations are in the leaked text. The answer to that is either not much, or a lot, depending upon what you mean by the question.

As for the sorts of provisions the US is asking these several countries to agree to, there hasn’t been a lot of change there. It still has language that indicates that even temporary electronic copies—like the copy you’re making of this post on your computer just by reading it, or the copy your computer makes of an mp3 whenever you play it—are presumptively illegal. It still contains language that can make it harder for countries to create new types of exceptions and limitations to copyright. It still limits the types of exceptions countries can make for laws enforcing DRM. It still pushes for minimum statutory damages for copyright infringement. And so on and so forth.

So on the one hand, people could be forgiven for thinking that the recent leaks don’t tell us anything new about what the US Trade Representative (USTR) is asking for. The positions are largely where they were two years ago, at the time of the last leak of the chapter in IP.

And that’s the very big thing that they do tell us. That the objections and concerns raised then haven’t had an impact on the direction the US is taking with these talks. More than that, it means that so many of the major events in copyright law of the last two years have failed to alter the course of the administration in its push for increasingly outdated policies.

Between February of 2011 and November of 2013, we’ve seen the unprecedented grassroots opposition to copyright enforcement expansion in SOPA; a similar international outcry against IP trade agreements in ACTA; and a groundswell of outrage that copyright law would prevent people from doing something as basic (and as unrelated to copyright’s purpose) as unlocking their cell phones.

But it’s not just the public that are being disregarded as the USTR barrels down the same path it’s followed for the past decade or so. We’re currently in a time when Congress, the Copyright Office, and the Patent and Trademark Office are all taking a serious look at how copyright law might change, and yet the TPP locks in many of the laws that three different parts of the government are looking at changing.

Congress and the White House both agree with the hundreds of thousands of Americans that cell phone unlocking shouldn’t be barred by copyright law, yet the language proposed by USTR would be used as an excuse to prevent conclusive solution to the problem. The Register of Copyrights has suggested that copyright terms might be active for too long, yet the TPP wants to enforce our punishingly long terms on countries around the world. The Patent Office and NTIA’s copyright specialists are asking whether the predetermined monetary penalties we impose for copyright infringement are too high, yet the TPP requires the creation of statutory damages.

Keep in mind that the point of the TPP is supposedly to promote trade among different Pacific Rim countries. But the immense amount of detail lavished on pushing a particular view of copyright law suggests that the agreement is being used to push the same sort of agenda we’ve been seeing over the past decade or more. And in the closed-off world of these trade associations, the debates, discussions and progress made in public amount to little at all.

This is why ensuring accountability for trade negotiations like the TPP is so important, and a big reason why members of Congress are increasingly concerned about the Administration’s desire to give the USTR “fast track” authority—the power to negotiate these agreements and then present the results to Congress for a simple up-or-down vote. This would take away much of Congress’s ability to oversee particularly troubling aspects of the agreement, turning nuanced policy arguments into a simple, “are you with us or against us” system. Hundreds of members of Congress have already spoken out, insisting that they, and the districts they represent, have more of a voice in agreements like the TPP. If they did, maybe we wouldn’t be looking at a proposal that looks like something from 2003 and not 2013.