Talk of the Trans Pacific Partnership has been in the news a lot recently; however, certain specifics about the deal itself have been more difficult to come by. The agreement is between Australia, Brunei, Canada, Chile, Japan, Korea, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam and it “eliminates tariffs on goods and services, tears down non-tariff barriers, and harmonizes regulations.” The agreement is made up of many different chapters that cover a broad number of topics and “sets down 150 negotiating objectives, such as tough new rules on intellectual property protection, lowering of barriers to agricultural exports, labor and environmental standards, rule of law and human rights….Congress would demand a loosening of restrictions on across border data flow, an end to currency manipulation, and rules for competition from state-owned enterprises.” With such an expansive list of goals and the level of significance this treaty would have, it’s no surprise that the amount of secrecy surrounding the terms and negotiations has people worried. The deal is under strict confidentiality until a final draft is produced, so the information made available thus far has either been chosen for release or leaked to the public.
One of those leaked sections was the chapter on Intellectual Property, which has raised many concerns. The chapter covers patent, trademark and copyright law and all countries involved in the agreement must follow the laid out requirements. In many ways the requirements are similar to current United States law, which is different, and in some areas, stricter than international policies. By forcing other countries to follow the United States’ strict laws, this will inhibit them from developing their own IP legislation, and it may force them into policies that have more benefits for large copyright owners and less room for innovation.
There is also an additional issue that arises from the agreement when it comes to arbitration. As of right now, certain breaches of the pact will be resolved by three arbitrators that are picked by the involved parties to oversee the process. However, since these arbitrators are not elected judges and will be determining “whether governmental actions, which are designed to protect our health, safety and environment and economic well-being, are consistent with the TPP[,]” there is a question of whether this decision making is constitutional.
However, for copyright law specifically, the TPP could mean big changes. For example, safe harbor provisions under the DMCA may no longer apply to some large intermediary websites such as YouTube and Google, and the duration of copyright ownership may be extended by decades, which could lead to significant problems for some newer public domain works in countries with shorter copyright terms.
The TPP seems to have a long road ahead before it is fully accepted and signed into effect, so in the meantime we’re left to wonder about the fate of these terms. If the TPP were to pass as is, copyright law could be changed without formal legislation and after being drafted mostly in secret, so many in the IP field are concerned about the extensive effects the deal will have. Many questions are left open about what will be retained from U.S. copyright law, what will be applied from it to other countries, what will change altogether, and with such a lack in transparency, these questions may unfortunately remain open for a while.