When we wrote about the intermediary liability provisions in a reported May 2015 leak of the Intellectual Property chapter of the Trans-Pacific Partnership (TPP) last month, we hadn't actually seen the text. But thanks to the publication of that leak by Knowledge Ecology International yesterday and today, we now have a far better understanding of the current state of play—including some of the reasons why the most recent round of negotiations in Maui fell apart.

Pushback Against Extreme Proposals

For starters, countries are resisting U.S. negotiators' audacious proposal to distort trade secrets law into a weapon against hackers, journalists, and whistleblowers. There are two new proposals in this leaked text, one of which the U.S. itself supports, to allow countries to adopt a narrow safe harbor for whistleblowers in respect of information that exposes a violation of the law. But this is far from enough. The safe harbor isn't compulsory and it doesn't apply to leaks of information that are of vital public interest, but that don't expose illegality—such as the TPP text itself.

Another important area of dissent from the U.S. negotiators' hard line appears in the Enforcement section of the IP chapter [PDF], in which every single country is now lined up against the U.S. in favor of a remedy for victims of wrongful copyright abuse. The provision that they seek would provide:

Each Party shall ensure that its judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide the party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney’s fees.

This is a modest provision, which doesn't even go as far as the existing law in some of the TPP countries, such as Australia. Since the proposal is also apparently consistent with section 512(f) of the U.S. Copyright Act, one has to ask why the U.S. administration wishes to prevent its trading partners from adopting a basic protection for victims of copyright trolls that already exists in U.S. law.

The text also reveals that Australia is also objecting to “country-specific outcomes” in the provisions on ISP liability. This is apparently an oblique reference to its desire for a footnote in the text allowing it to opt for the TPP's relatively more flexible ISP liability rules over the DMCA-clone rules that it was coerced into accepting in its 2005 Free Trade Agreement with the United States.

As in previous drafts, most countries remain opposed to a worrying U.S. proposal to limit the Internet retransmission of television broadcasts without the authorization of the rights holder of the broadcast content—and, tellingly, that of the rights holder of the broadcast signal itself. This presages the expected accession of the United States to a future WIPO Broadcasting Treaty. The treaty could grant broadcasting corporations new copyright-like rights over their signals, as a further weapon against Internet-based services that reuse broadcast content in innovative ways.

The Big Content Agenda Remains Intact

Despite a few such modest challenges to the USTR's copyright maximalist agenda, other restrictive U.S. proposals are little changed from previous drafts of the text, and there is no evidence that the other countries are resolved to opposing them. Just to highlight a few of these:

The prospect of the TPP requiring massively disproportionate damages awards for copyright infringement remains fully alive. The text continues to authorize a court to consider “any legitimate measures of value the rights holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.”

This is in addition to offering pre-established damages at the election of the rights holder, which are to be set at a level not only to compensate the rights holder but also to deter future infringements. Countries that do not offer pre-established damages must instead allow their courts to order “additional damages,” such as exemplary or punitive damages, that go beyond compensating the rights holder for its actual loss.

The text allows authorities to seize not only “suspected infringing goods” but also “materials and implements relevant to the infringement,” such as a server used to host infringing materials. In criminal cases, authorities are also explicitly authorized to destroy those goods, and the U.S. is opposing that this be limited to goods that have been “predominantly” used in the creation of infringing copies—thus a server could be seized and destroyed even if it hosted many non-infringing websites.

The text continues to define “commercial scale” infringement, being the threshold over which criminal sanctions apply, to include “significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace.” Such provisions could be targeted at fans offering non-profit services such as native language subtitling for films, to give just one example.

User-Allied Countries Are Buckling

In a few instances we can actually see opposition to the copyright maximalist agenda weakening. The most concerning example of this is in the case of the provisions against circumvention of DRM. In the earlier draft, two countries objected to the requirement that there should be criminal penalties for those who provide devices that can circumvent DRM—now, that opposition has withered away to nothing.

Similarly, Australia has dropped its support of New Zealand's proposal that laws against DRM circumvention could be limited to cases where the circumvention involves an act of copyright infringement. This modest proposal reflects the law in countries such as India, and is consistent with the policy behind a U.S. federal court decision that cleared a company of responsibility for authorizing its users to remove DRM from their lawfully-purchased books, as well as with the Marrakesh Treaty which allows DRM circumvention for the blind and visually impaired. With Chile now also acceding to a related provision that requires the offense of DRM circumvention to be made independent of that of copyright infringement, the last trace of opposition to unbalanced anti-circumvention laws has been stricken from the TPP.

It's doubtless that text has changed again during the last negotiating round, but how much faith can we have that it will have changed in a way that is favorable to users? If we compare the last leaked draft to this one, the minor improvements can be counted on the fingers of one hand, while there are many more provisions that remain as bad as they ever were—and opposition to them is dwindling. Chances are, the main difference between this leak and the current, still-secret text is that users' rights have been sidelined even further in favor of big content lobbyists.

As the output of a thoroughly captured and opaque process, this should come as no surprise. But the inevitability that the TPP will be bad for users doesn't mean that we are resolved to accept its passage into law. It's not too late for you to take action, and help to kill this illegitimate and undemocratic agreement once and for all.

~

If you're in the United States, sign this petition urging the U.S. Copyright Office to reaffirm its call for balanced policy.

If you're in Canada, take action by sending an email to party leaders urging them to speak out against this unwarranted copyright term extension in the TPP.

If you're in Malaysia, urge your country's negotiators to resist pressure to increase the copyright term by 20 years.