November 14, 2013 9:05am PT by Eriq Gardner
Wikileaks' Release of IP Trade Treaty Draft Raises Alarm of 'Hollywood Wish List'
Next week, trade representatives from the United States, Canada, Mexico, Chile and various nations along the Pacific Rim will gather in Salt Lake City to discuss the Trans-Pacific Partnership, a trade treaty that has been in the works for several years. Many of the details of the negotiations have been kept private, but on Wednesday, Wikileaks released a draft of the proposals.
Much of the draft centers on patents and involves the medical establishment, but there are whole sections devoted to copyright and trademark issues, providing grist to those who previously fought measures like the Anti-Counterfeiting Trade Agreement and the Stop Online Piracy Act as perceived threats to digital freedoms. An example of the fears is The Washington Post's Timothy B. Lee, whose column is headlined, "Leaked treaty is a Hollywood wish list. Could it derail Obama’s trade agenda?"
Among the proposals being highlighted is the lengthening of the copyright term. Under the Berne Convention, copyrights are protected for 50 years after the author's death, but the United States appears to be pushing much of the world to its norms of 70 years after the death of an author, or 95 years in the case of corporate authorship. Mexico's own proposal to make it 100 years after an author's death is raising eyebrows, but that country doesn't go as far on corporate-authored works, aiming to limit them to a 75-year term.
The Electronic Frontier Foundation says the "TPP leak confirms the worst," in its own analysis of the draft, and spotlights a “3-step test” for fair use provisions they deem to be a ceiling rather than a floor, proposals preventing the circumvention of technological protection measures, and debates over what language to adopt concerning the liability of ISPs.
More analysis of the TPP draft like this listicle of "5 Scary Provisions" raise the fear the treaty could give rise to ISPs increasingly playing cops on the infringement front, cutting off Internet access to repeat abusers.
Then, there's the alarm that TPP might "jeopardize the entire business model of Aereo," as an article at Ars Technica puts it. That's based on a U.S. proposal that states "no Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal."
Of course, as the article later notes, Aereo sees its antennae-based system not as a public retransmission but rather a private performance, and since various courts are still weighing that, it's unlikely the language would really upset the status quo.
After Wikileaks published the TPP draft, the U.S. Trade rep cautioned that "discussions has not been completed and a final text has not been agreed to."
There's also those who believe that the TPP would be a good thing. For the other side of the debate, here's testimony delivered to Congress in August by Steven Metalitz, counsel for the International Intellectual Property Association, whose members include the MPAA, RIAA, and other entertainment trade groups. He sees the TPP as an opportunity to open up markets and create jobs, and defends the international adoption of technological protection measures, the harmonization of statutory damages and more.
If there is any agreement in Salt Lake City, the treaty would have to be ratified by Congress at a time when many lawmakers on both side of the political aisle have been sounding their own alarms on President Barack Obama using fast-track trade negotiating authority to limit the legislative branch's input on trade deals.