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Marking Up the TPP

(Summary: I’ve uploaded the text of the leaked Trans-Pacific Partnership (TPP) to the annotation site Rap Genius with my comments and analysis, and I am inviting yours. Have at it.)

What’s this about?

There has been a lot of noise about the recently leaked text of the IP chapter of the Trans-Pacific Partnership. Secret trade agreements will do that. While some of the anxieties about TPP are appropriate, others may be misplaced. Some have argued, in 2000-word blogposts, that there’s nothing to see here. Of course, if there is truly nothing to see, it shouldn’t take 2,000 words to say it.  (Pay no attention to that trade agreement behind the curtain!) At the same time, other accounts have suggested that TPP might be a sequel to the controversial and ill-fated Stop Online Piracy Act (SOPA) (e.g., here and here).

Thus, while we are right to ignore Panglossian assertions that the agreement is the best of all possible trade agreements, my opinion is that comparisons to SOPA are misplaced. SOPA represented an attempt to short-circuit the U.S. Copyright Act’s safe harbors, which would have compelled online intermediaries to dramatically alter Internet infrastructure management, and would have nevertheless been wholly ineffective at preventing infringing content from appearing online. In particular, SOPA adopted a “kill the messenger” approach to online copyright infringement. The copyright subchapter of TPP, by contrast, reflects much of the good and bad of U.S. copyright law. On the specific issue of Internet liability, the U.S. TPP proposal largely replicates the notice-&-takedown provisions of the DMCA safe harbors. Valid complaints [1],[2] may be advanced that the U.S. DMCA’s approach to notice & takedown does not do enough to deter misuse of takedown abuse, but that isn’t the same as TPP being SOPA-analog.

Instead, what the leaked TPP text on intermediaries actually shows (largely in this sub-chapter of TPP) is that U.S. negotiators are fighting an uphill battle to export the U.S. DMCA, against other approaches, including the newly enacted Canadian law, as explored by Prof. Michael Geist here. Other examples of how TPP exports U.S. copyright law are also evident in the leaked text. For example, it contains an unprecedented provision approximating the U.S. fair use doctrine (arguably good), as well as the embarrassing notion that you can incentivize dead people to create more works, retroactively, by extending their copyrights for 20 years. (Arguably bad, at least until someone founds the Zombie Authors’ Guild).

U.S. experts may have concerns about the extent to which TPP accurately reflects U.S. law, and — assuming it does — whether locking in some provisions (and not others) via agreement is sound policy. Similarly, experts from other TPP countries may question whether adopting various provisions of U.S. law is desirable in their national legal system. Several already have. This is a question more complex than “is this SOPA 2?”, however, and it requires careful study of various provisions.

To that end, we want to enable experts and interested parties to edit/mark up the leaked TPP text, which is where Rap Genius comes in. Rap Genius is very effective for this purpose: it enables user-friendly, HTML-enabled crowd-sourced annotation to anyone online. Users may add their own annotations, comment on mine, or add suggestions to improve the text. {N.B.: errors in transcoding the document formatting are mine alone, and in cases of conflict, the original text should govern.}

I have indicated the origins and bases for numerous provisions, pointing to similarities and differences in in previous international agreements and/or U.S. law. I invite others to supply their own; by crowd-sourcing commentary and analysis of the text we can tap the wisdom of some very smart crowds. I will note that Prof. Kim Weatherall’s hot-off-the-press section-by-section discussion of the latter portions of the chapter is a good starting point for considering TPP.

As numerous law professors recently argued in regard to TPP, considering “informed public input” and “the broad range of opinions” about TPP may help achieve a better instrument.

Section-specific links follow:

TPP IP Chapter-Leaked Draft- Section A: General Provisions

TPP IP Chapter-Leaked Draft- Section B: Cooperation

TPP IP Chapter-Leaked Draft- Section C: Trademarks

TPP IP Chapter-Leaked Draft- Section D: Geographical Indications

TPP IP Chapter-Leaked Draft- Section E&F: Patents, Undisclosed Data, Traditional Knowledge, & Industrial Design

TPP IP Chapter-Leaked Draft- Section G: Copyright & Related Rights

TPP IP Chapter-Leaked Draft- Section H: Enforcement

TPP IP Chapter-Leaked Draft- Section I: Internet Service Providers (& Appx)

Digital Trade

Companies rely on clear, predictable rules that facilitate digital trade to export their products and services around the world. These rules include balancing the competing interests between encouraging investment and enabling information access; promoting the free flow of information online; and maintaining balanced intermediary liability regimes.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.