Certification Allows US Trade Negotiators to Rewrite TPP Copyright Rules

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As the negotiations over the Trans-Pacific Partnership agreement (TPP) continue to trudge along, little new information has leaked because the negotiations are being conducted under conditions of strict secrecy.

But this week, the launch of the TPP: No Certification website by a coalition of activists has shed new light on one issue that has been often overlooked before now. The United States, exclusively amongst the dozen negotiating partners, is reserving the right to vet other countries' implementation of the agreement before its own obligations come into effect. This has worrying implications for other countries planning to take advantage of whatever flexibilities remain in the TPP text after the negotiations are finished.

For example, the leaked draft of the TPP requires signatory countries to provide “legal incentives for service providers to cooperate with copyright owners.” Since “legal incentives” is so vague, there are several ways in which a country might interpret and implement this—a narrow interpretation might merely require Internet Service Providers (ISPs) to be offered a tax break for hosting anti-piracy banner ads, but if interpreted more broadly it might penalize ISPs millions of dollars unless they disconnect suspected infringers from the Internet.

Certification means that this ambiguity or flexibility could disappear, leaving countries with only one, extreme interpretation of their obligations under the TPP—whatever interpretation the US Trade Representative (USTR) unilaterally decides.

What Does Certification Mean?

Before the TPP becomes binding on any of the negotiating countries, they will each have to undergo a set of domestic procedures to approve the agreement. These vary from one country to another. For most countries, once this domestic approval process has taken place, this will activate its obligations towards all other countries that have undergone a similar approval process.

But only for the United States, its approval of the agreement will take place in two phases. First, Congress gives its overall approval of the TPP text, and second, the implementing laws of each of the other countries must be individually certified before the obligations of the US take effect for that country. This certification is not conducted by an independent body, but by the USTR, based on its own assessment of what was agreed—even if these supposed obligations were not reflected in the final text. Essentially, it's a way for the US to twist the arm of other nations until they enact policies it couldn't get them to agree to during negotiations.

How It Affects Copyright and Patent Laws

The threat of certification is not widely known in itself, but what has been even more obscure is one of the USTR's main motivations for toughening up certification requirements on its trading partners. Some of those partners have a record of passing more flexible copyright and patents laws than the US would like, so they use these certification powers to try to hold those nations ransom until they can get the policies that appease its domestic interests.

Chile, for example, entered into a Free Trade Agreement (FTA) with the United States in 2004, but only in 2010 finalized a system for copyright content takedown. Under this system, unlike under the US DMCA, removal of content by intermediaries requires a court order in order to comply with Chile's constitution and its obligations under the American Convention on Human Rights.

The FTA permits this interpretation, but the USTR has strongly criticized it, urging Chile “to amend its Internet service provider liability regime to permit effective action against any act of infringement of copyright and related rights.” Chile remains on the Priority Watch List of the most recent Special 301 Report [pdf] published by the USTR, for this and other supposed deficiencies in its implementation of the FTA.

Australia provides another example. Australia, like the United States, is a signatory to the WIPO Copyright Treaty. Since 2000 it has had its own equivalent of the DMCA that implements that treaty—relevantly including a prohibition on the use of circumvention devices to bypass technological protection mechanisms (TPMs, also known as digital locks) that prevent digital works from being copied.

Following its conclusion of a trade deal with the United States in 2004, Australia was forced to amend this provision, to toughen it in several ways going beyond its WIPO obligations—including criminalizing circumvention and criminalizing trafficking in circumvention devices. Although the act of circumvention was subject to certain “fair use”-style exceptions, the supply of circumvention devices was criminalized outright. A subsequent Parliamentary Report [pdf] noted this as “a flaw that verges on absurdity,” rendering the circumvention exceptions “to be little more than empty promises.” Yet Australia was forced to agree to these absurd changes in order to satisfy US demands.

Certification and the TPP

The USTR has exercised this power for decades for other trade agreements, yet still, the consequences if it is applied to the TPP are difficult to predict and potentially serious. It would jeopardize the ability for other countries to make use of any positive concessions that they may have been able to negotiate in the TPP's copyright and patent text, that could allow their lawmakers to enact better policies that uphold the interests of users and consumers, or oftentimes, preserve such laws that are already in place.

With certification, the US can get away with not holding up their side of the deal as long as the US decides that other countries are not implementing the agreement to their liking. It is in other words, another stick that the USTR can use to force these countries into passing ever more senseless, draconian digital policies that go beyond the TPP's literal wording.

It's important to remember that the policies the USTR is forcing on to other countries are not representative of what the people in the US want, nor even reflective of the policies that are in place in the US. Certification is another way for the USTR to compel negotiating partners to enact policies that are harmful to users. It is reflective of how much Hollywood, major publishers, and other big corporate interests have captured the USTR's objectives.

The specter of the certification process sounds yet another note of caution for countries negotiating the TPP. They should be very wary in committing themselves to uphold such an agreement in circumstances where the flexibilities they believe they are agreeing to could actually be whittled away at the whim of one of their negotiating partners.

Conversely, if it seeks to gain the trust of both its partners and domestic stakeholders, US trade policy requires radical reform, not only to the flawed certification process, but also to the secrecy of trade negotiations in general, the lack of accountability to the public, and Fast Track proposals that insulate trade agreements even from the scrutiny of Congress itself.

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