Reactions to the Leaked Trans-Pacific Partnership Document – It’s Pretty Terrible

A chapter from the Trans Pacific Partnership agreement was leaked this week (thank you WikiLeaks) and the text is as draconian and terrible as we had feared.

From Consumer Affairs:

WikiLeaks published the complete draft of the Intellectual Property chapter for the Trans-Pacific Partnership (TPP), a proposed international commercial pact between the United States and 11 Asian and Latin American countries. Although talks started in 2008, this is the first access the public and press have had to this text. The administration has refused to make draft TPP text public, despite announcing intentions to sign the deal by year’s end. Signatory nations’ laws would be required to conform to TPP terms.

The leak shows the United States seeking to impose the most extreme demands of Big Pharma and Hollywood, Public Citizen said, despite the express and frequently universal opposition of U.S. trade partners.

There are other commentators talking about it very astutely right now, but one of the most important things is how this agreement would make the possibility for change in copyright regimes insanely difficult:

The second that Congress tries to change a law that goes against the TPP — such as, say, reducing the term of copyrights from the insane level today to merely crazy — lobbyists and pundits will come screaming from every direction about how we can’t abandon our “international obligations.” We’ll hear horror stories about how breaking the agreement will have widespread implications, including trade wars, tariffs and other horrible things. Once it’s in the trade agreement, “breaking it” becomes effectively impossible.

The lobbyists for the entertainment industry know this stuff cold. Over the past three decades they’ve perfected this process of getting crap they can’t get done in Congress pushed through in various trade agreements, and then they use that to mold US law to exactly how they want it.

Now that is from a US perspective, but is there any reason to think that Canada would push for fewer restrictions in defiance of a trade agreement like this? Strangely enough, according to Michael Geist’s first reading of the document, there is:

Interestingly, Canada has also promoted Canadian-specific solutions on many issues. The bad news is that the U.S. – often joined by Australia – is demanding that Canada rollback its recent copyright reform legislation with a long list of draconian proposals.

We have our own issues with copyright laws here, but an agreement like this would seem to effectively wipe out any progress we’re making in favour of stricter more punitive laws designed not for and by citizens but corporations.

As we’ve come to expect in this arena, OpenMedia is on the case, providing good calls to action for citizens, though they’re focused on the ISP billing aspect and its anti-consumer implications. The TPP also would turn our Internet Service Providers into copyright police:

Instead of your ISPs selling you a connection service, the TPP will force them to pry into what you’re doing online. The TPP will make ISPs legally responsible if any of their hundreds of thousands of customers downloads illegal content.

A Councillor for the Pirate Party Australia pointed out the punitive nature of aspects of this agreement in a way that could have real implications for libraries:

Perhaps the most shocking inclusion in the TPP IP chapter is criminalisation of non-commercial copyright infringement. Article QQ.H.7.2 contains language that is supported by the United States and by Australia, that would potentially imprison people considered to have committed infringement on a “commercial scale”, regardless of whether there was a financial incentive. This is a fundamentally unbalanced proposal.

Librarians should probably be concerned about that kind of thing. Is the important accessibility work that a Canadian organization like the National Network for Equitable Library Service does on a large enough scale to run afoul of these provisions? Could we be sending anyone who helps break DRM for format shifting purposes to jail? Maybe not, but we are not being given a voice in this debate.

Secret negotiations on issues that affect us, including huge trade agreements, are bullshit. People deserve to have a real voice and make informed choices as to what happens in their lives. Please read up on the TPP (OpenMedia compiled a good bunch of links today) and make yourself heard.

Access Copyright versus York – Week in Review

We’ve had a week of responses to the Access Copyright (AC) lawsuit against York University, and predictably they haven’t been very supportive of AC’s decision to defend what the Canadian Federation of Students calls “obsolete licensing agreements” and “archaic models.” Canadian Association of Research Libraries (CARL) President Thomas Hickerson said in CARL’s statement,

Access Copyright’s action seems to question rather clear copyright law and jurisprudence, and feels very much like an attempt to intimidate universities into buying their blanket licence.

But why would AC need to be intimidating institutions into using its services? A big answer to that question comes from the Supreme Court’s 2012 decisions supporting Fair Dealing for education. It was these rulings that undermined AC’s business model by supporting a more open approach to copyright in educational matters. In those rulings, as Howard Knopf pointed out at the time:

• Collectives cannot assume that they will be entitled to an additional “layer” of remunerated rights every time there is a new method of delivery. Technological neutrality matters.
• The Court said what it meant and meant what is said in CCH v. LSUC in 2004 and will move forward from there – not be pushed backwards. Users have rights that must be given a “large and liberal interpretation”. Copyright doesn’t exist solely for collectives.
• Educators are in a “symbiotic” relationship with students and the Copyright Act serves the goal of education, which includes access to essential material. “Instruction and research/private study are, in the school context, tautological.”

There’s much more at that link highlighting the kinds of things that in this lawsuit Access Copyright seems to be pretending the court did not say.

Last summer Michael Geist also took a closer look at what those Supreme Court cases meant:

Led by Justice Abella, the court has reaffirmed that fair dealing is a user’s right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies.

That victory for Fair Dealing and education in general was last year though, and maybe we’ve seen a huge amount of terrible activity at York University since then to justify lawsuits? Nope. As AC’s statement says, its “legal actions signal to institutions that we continue to strongly disagree with their interpretation of the law.” This is not a case of specific infringement, but a policy disagreement that is leading AC to spend the money it makes from its members litigating educational institutions.

The Canadian Association of University Teachers (CAUT) issued a letter to Access Copyright noting that AC’s lawsuit is not in the service of education:

As we have explained, the availability of new contractual models (specifically site licenses directly between content providers and academic institutions), modes of scholarly communication (Open Access publishing), and user rights (the CCH and Alberta decisions and Bill C-11) has had a profound impact on the utility of Access’s services in the post-secondary education sector. It is now clear that Access Copyright’s only plan is to try to hang on to the past. This serves no one well.

And that’s really the problem with this whole thing. Suing people/educational institutions to protect a business model is not a way to help students and scholars. In CARL’s statement Brent Roe said,

[Fair dealing] unlocks knowledge for generations of students, who are the future of innovative research. Education as fair dealing must be protected against predatory lawsuits.

That is a position that we totally support.

More Access Copyright v. York University Reading Material

Since we posted about it last night, Michael Geist has written specifically about this new lawsuit by Access Copyright against York University, and Howard Knopf has a post about the tariffs mentioned in the press release has posted a copy of the Statement of Claim in the lawsuit.

The Canadian Association of Professional Academic Librarians has released a short statement, which also linked to the Canadian Association of University Teachers’ analysis of Access Copyright’s bad deal for education.

Also, it’s probably worth noting that BCLA wrote a letter to BC College and University presidents (PDF) in 2012 about Access Copyright, and made a resolution on the matter (PDF) too.

Ubyssey explainer on Access Copyright

Though it takes a little while to get into the meat of it, I thought Arno Rosenfeld did a nice job in this Ubyssey article, The great copyright battle, explaining Access Copyright and why universities like UBC might find it a bad deal.