How would you react if you found out that traffic laws made the roads more dangerous for pedestrians? Or if existing building codes led to newly constructed houses becoming less structurally sound? Most people would probably be distressed to find out if regulations meant to serve a certain public good in fact undermined their very purpose.

The rhetoric around copyright and patents has been that they are unquestionably effective at promoting creativity and innovation. If you’ve been following EFF’s work over the years however, you would know that that’s simply untrue. In the U.S., we have seen case after case where new businesses, innovators, researchers, and artists have been silenced or sucked dry in the face of harsh copyright enforcement provisions.

The intellectual property chapter in the Trans-Pacific Partnership (TPP) lifts and exports some of the worst parts of the U.S. copyright regime to the rest of the world. Here, we highlight just a few ways that those TPP provisions could debilitate the very people they supposedly meant to benefit: innovators and artists.

Expensive cost of enforcement can impede new Internet-based start-ups

The TPP carries provisions that could have the effect of making Internet service and content providers liable for copyright infringement by their users. The leaked draft includes a U.S.-style safe harbor provision that is meant to ensure service providers do not have an obligation to monitor their users’ activities in most instances. The safe harbor provision gives companies a way to protect themselves from legal liability as long as they put in place notice and takedown procedures. However, similar language in U.S. copyright law has not stopped large content owners from bringing lawsuits that, if successful, would require websites and service providers to become copyright cops. This leads to a number of setbacks.

For Internet Service Providers, the cost of implementing a system to oversee all users’ activities and process each takedown notice could be excessive. At the very least, companies would be forced to sink significant resources into legal defenses, and thereby discouraging investment.

Even if they are arguably in compliance with the safe harbor provisions, websites and services that enable platforms for social, user-generated content risk being hit with a copyright infringement suit. For example, Veoh, a web host that made every effort to “play by the rules,” was hit with a massive lawsuit. Several courts have said that Veoh was protected by the safe harbors, but litigation costs still put the company out of business. If replicated abroad, cases such as these can lead to such services becoming overcautious about hosting content, and lead them to take down, filter, or block subjects.

Legal protections for technologies that block innovation and fair competition

Digital rights management (DRM) software, also known as technological protection measures (TPMs), is code installed on devices to limit the use of content after sale. The supposed purpose is to prevent infringement of the content on the device (such as software, music, books, etc). Despite growing evidence that DRM technologies do much more harm than good, the TPP mandates legal restrictions that can be used to punish innovators and researchers for “circumventing” DRM—even if the circumvention is for a lawful purpose.

DRM can easily be used to support anti-competitive business practices and hamper innovation that builds upon existing technologies. For example, a company can prevent “unauthorized” software or digital content from interoperating with their devices by inserting DRM.

Overbroad definition of a “copy” allows existing dominant companies to crush new innovative businesses

All routine computer functions rely upon the regular creation of temporary copies of programs and files. Temporary copies are files that are automatically copied by computers into their random access memory (“RAM”) during everyday operations, and so temporary copying of data is fundamental to how computing works in general. The TPP has a provision that includes even “temporary reproductions” of copyrighted works without rightsholders’ permission as a potential copyright infringement. This definition is so broad it could be used to penalize and control a wide range of obvious legal activities.

In the U.S., there is a history of entertainment, tech, and other companies relying on this broad definition of a copy to sue independent creators and innovative services out of existence. A computer repair technician was sued for copyright infringement for simply loading a computer program into memory. Motion picture and television companies sued Cablevision, a cable TV provider, over its plans to deploy a “remote DVR” service that would allow its subscribers to record TV programming and play it back whenever they would like. The industry argued that since this service required Cablevision to make copies to save on its servers, it itself was an infringer of copyright. Cablevision prevailed, but only after expensive litigation.

Many countries do not have legal doctrines, such as fair use, that have helped mitigate the negative impact of potential liability for temporary copies. The TPP probably won't require countries to adopt fair use along with the innovation-killing parts of U.S. copyright law.

Excessive copyright term lengths impede creation of new works

One of the main purposes of copyright is to promote the creation of new works by giving authors certain exclusive rights to that work for limited times so that they may profit from them. However, the current standard copyright terms are much too long to be justified by this underlying objective. The international minimum length of copyright protection is life-of-the-author plus 50 years, or 50 years for corporate-authored or unpublished works. TPP would extend these terms even further, setting the minimum term to 70 years after the death of an author, and corporate works to 120 years after the date of creation.

Many academics say that such long copyright terms yield at best minimal increases in compensation for living authors and that there is little evidence to show that they significantly contribute to an author’s incentive to create. Creativity and innovation are only possible by building upon the prior work of others; excessive copyright terms prevent artists and creators from accessing, remixing, and recreating new works out of existing ones. The international standard for copyright terms is already too long, but the TPP would extend it even longer.

As long as a work is restricted by copyright, new creators would be severely restricted in their ability to use those materials legally — or completely unable to do so. Therefore the costs of making new works can become a barrier for creators. In countries where there is more flexible fair use, there may be more legal room to use these works. But still, it remains a murky, risky, and grossly inefficient system.

There are many works where the author of a work is deceased or cannot be located. As a result, getting explicit permission to use these "hostage works" can become ever more expensive or difficult. Creators might end up not making new works for fear of liability, if they use or are inspired by original works that might be protected by copyright.

~

Policymakers need to stop treating copyright law as a zero-sum game. An effective innovation policy is one that does not entitle an elite group of creative industries at the costly expense of everyone else. It must enable and promote new businesses. The TPP's intellectual property chapter carries provisions that instead threaten to force countries to enact laws that stifle and prevent new innovative services and creative works.

The negative consequences of copyright law can no longer be dismissed as simply a "price" we need to pay to ensure creators get compensated. The U.S. copyright regime is hugely deficient. Trade negotiators need to stop advocating for the worst parts of U.S. copyright law and exporting them around the world as if they are sound regulatory models. It's time to design innovation policy in a manner that pragmatically supports and incentivizes all innovators, big and small.

~

If you're in the US, please call on your representatives to oppose Fast Track for TPP and other undemocratic trade deals with harmful digital policies.