BY MAIRA SUTTON
ELECTRONIC FRONTIER FOUNDATION
The Internet is a diverse ecosystem of private and public stakeholders. By excluding a large sector of communities—like security researchers, artists, libraries, and user rights groups—trade negotiators skewed the priorities of the Trans-Pacific Partnership (TPP) towards major tech companies and copyright industries that have a strong interest in maintaining and expanding their monopolies of digital services and content. Negotiated in secret for several years with overwhelming influence from powerful multinational corporate interests, it’s no wonder that its provisions do little to nothing to protect our rights online or our autonomy over our own devices. For example, everything in the TPP that increases corporate rights and interests is binding, whereas every provision that is meant to protect the public interest is non-binding and is susceptible to get bulldozed by efforts to protect corporations.
Below is a list of communities who were excluded from the TPP deliberation process, and some of the main ways that the TPP’s copyright and digital policy provisions will negatively impact them. Almost all of these threats already exist in the United States and in many cases have already impacted users there, because the TPP reflects the worst aspects of the U.S. Digital Millennium Copyright Act (DMCA). The TPP threatens to lock down those policies so these harmful consequences will be more difficult to remedy in future copyright reform efforts in the U.S. and the other eleven TPP countries. The impacts could also be more severe in those other countries because most of them lack the protections of U.S. law such as the First Amendment and the doctrine of fair use.
Excessive copyright terms deprive the public domain of decades of creative works. They also worsen the orphan works problem, which arises when obtaining permission to use works is impossible because the rightsholder is unknown, deceased, or is nowhere to be found, and using them without permission is legally risky.
Lose autonomy and control over legally purchased devices and content because it is a crime to remove its digital locks or Digital Rights Management (DRM). This means modifying, repairing, recycling, or otherwise tinkering with a digital device or its contents could be banned or is at least legally risky.
If you post a personal video that contains someone’s copyrighted song, video, or image online without permission, it may get taken down or the user may be forced to pay a penalty no matter how insignificant that copyrighted content is to the whole of the video. Their account may also be suspended or restricted permanently or for a prolonged amount of time. If it happens to go viral they may be held criminally liable because it’s arguably available at a “commercial scale.”
Those who put on a themed party or cosplay based on a character from a favorite show or movie could be forced to pay a penalty or have images from it removed from the Internet. Again, the risks and penalties are much higher if it happens on a “commercial scale.”
If you stream some copyrighted gameplay with commentary to friends and other fans, the video may get taken down or the user may be forced to pay a fee.
It will hamper introduction of new user protections in the law, such as new fair use rules or new permanent permissions to circumvention DRM on devices, because several thousands of companies would be empowered to challenge new public interest rules as undermining their “investments” or expected future profits.
New rules applicable to national-level domains will block reforms that EFF and others are working on to protect website owners from having to reveal their real name, address, and other personally identifying information through the domain name system (DNS), making them vulnerable to copyright and trademark trolls, identity thieves, scammers, and harassers.
Safety of devices and networks could be compromised because the TPP bans countries from requiring source-code disclosure and code auditing for most software and devices.
Innovators and Business Owners
DRM is often used for anti-competitive purposes. It can block innovators from building interoperable services or products to be used with existing platforms, and prevents third-party repair services. More fundamentally, it blocks tinkering and experimentation which is critical to open innovation.
Small web-based businesses and platforms may not have the legal resources or expertise to deal with excessive or faulty copyright takedowns.
Services that may want to use or build upon existing content for new purposes will have less protections in other countries because fair use is not enshrined in the TPP. No incentive is created for TPP countries to pass flexible exceptions and limitations to copyright’s restrictions.
New legal protections for independent innovators and small businesses may be undermined if a multinational company alleges it undermines their investment or expected future profits and challenges the rule in an investor-state proceeding.
Libraries, Archives, and Museums
Excessive copyright terms harm the availability of books, photographs, and all creative works in the public domain. It also worsens the orphan works problem, when obtaining permission to use works is impossible because the rightsholder is unknown, deceased, or is nowhere to be found, and so preserving or archiving copies of them could be legally risky.
Heavy penalties for infringement, in the form of pre-established statutory damages that are not connected to the actual harm from infringement, chills preservation and archival efforts, where copying or changing the format of existing works is already legally risky.
Research and quotation can be hampered by bans on circumventing DRM on books or other kinds of digital content, and also limit the availability of digital works
Despite explicit exception for libraries and museums, a ban on tools for circumvention limits their ability to take advantage of it because they often lack the knowledge or tools to do so.
Weak exceptions and limitations language gives no incentive for countries to give legal certainty to activities of libraries, archives, and museums that involve technical acts of copying or DRM circumvention—such as enabling the use of copyrighted works for research and quotation, preservation, and copying material for educational purposes.
Use of textbooks, documents, movies, photographs, or other copyrighted works for school assignments and projects could be restricted even further because such rights are not enshrined in the TPP.
Removing DRM or rights management information from textbooks, articles, or any kind of creative work could lead to criminal liabilities if they share the unlocked work with friends or fellow students.
Excessive copyright terms harm the availability of books, photographs, and all creative works in the public domain. It also worsens the orphan works problem, when obtaining permission to use works is impossible because the rightsholder is unknown, deceased, or is nowhere to be found, and so using them for research or school projects could be legally risky. Too-long-copyrights also make books more expensive.
Heavy-handed criminal and civil penalties for copyright infringement can be chilling on students who seek to share or use copyrighted works for educational purposes, or at worst, it could lead to imprisonment or leave them with huge fines.
Impacts On Online Privacy and Digital Security
New rules will block reforms that EFF and others are working on to protect website owners from having to reveal their real name, address, and other personally identifying information through the DNS, making them vulnerable to copyright and trademark trolls, identity thieves, scammers and harassers.
ISPs may block Virtual Private Networks (VPNs) as part of their duty to cooperate with copyright owners to deter the unauthorized transmission of copyright material. As an intermediary, VPNs could also be made liable for the transmission of infringing works if they fail to follow safe harbor rules such as disconnecting repeat infringers.
If a user sends a counter-notice to restore wrongfully removed content, the online service provider can be required to pass on personal information of the user to the rightsholder to allow them to serve the user with a lawsuit in case they insist that the work infringed on their copyright.
There is no explicit exception for security researchers to circumvent DRM in order to conduct encryption research on digital devices or content, unlike under U.S. law. This is deeply problematic when third party researchers have been credited with finding security holes in many modern devices. This criminalization of DRM circumvention discourages people from identifying security flaws when doing so requires breaking the law.
Copyright enforcement rules incentivize website owners to take down content or block users from their site from a mere copyright infringement allegation. They will do so in order to protect themselves from liability, even if the work in question is fair use or otherwise legal.
New rules will block reforms that EFF and others are working on to protect website owners from having to reveal their real name, address, and other personally identifying information through the DNS, making them vulnerable to copyright and trademark trolls, identity thieves, scammers, and harassers.
If the website’s domain is alleged to infringe on someone’s trademark, the dispute resolution process that national domain registries are required to adopt is one based on a flawed global model that favors established trademark holders.
If the webpage receives several copyright infringement notices, it may be downranked or completely removed from search results.
Modifying games or sharing the information on how to do so is illegal under rules that ban the unlocking of DRM, even if it has nothing to do with piracy. Circumventing DRM is a separate criminal offense from copyright infringement.
Streaming or uploading recorded gameplay, even with commentary, can be taken down. Otherwise they may be forced to pay a fine or be unable to object to advertisements being added to the video. Their account may also be suspended or restricted permanently or for a prolonged period of time.
Ongoing legal uncertainty, or even heightened illegality, of remixing or appropriating creative works for their own projects.
Bans on circumventing digital locks or DRM on devices and content can make it difficult or impossible to re-use locked content for new works.
Excessive copyright terms deprive the public domain of decades of creative works. They also worsen the orphan works problem, when obtaining permission to use works is impossible because the rightsholder is unknown, deceased, or is nowhere to be found, and so using them is legally risky.
Artists could face liability for stripping off watermarks (AKA rights management information) from works, even if you’re reusing them for fair use or other legal purposes.
Journalists and Whistleblowers
Criminal or civil penalties for publishing information that reveals a corporate “trade secret” and is accessed, disclosed, or made available through any kind of computer system, even if it is for the purpose of revealing corporate wrongdoing. They could face criminal liabilities for publishing information from sources whom they know obtained the information improperly.
There is continued legal uncertainty about the scope of rights to quote from sources, due to the lack of a fair use or journalistic usage right.
It could undermine anonymity of journalists or whistleblowers online by obligating countries to require the availability of a real name and address for registered domains on websites.
People with Sensory Disabilities
There are no compulsory copyright limitations or exceptions for persons with disabilities. That means countries would be required to enact stronger copyright enforcement mechanisms without having to enact legal safeguards for persons with disabilities, even if new rules lead to greater restrictions on the availability of content in accessible formats.
Excessive copyright terms of life of the creator plus 70 years keep digital creative works, including software, locked behind onerous restrictions for longer and have been shown to further worsen the availability of books.
Bans on getting around digital locks or circumventing DRM undermine people’s ability to modify their own content and devices. Removing DRM on books, movies, video games or software to turn them into accessible formats becomes a criminal act, or is at least legally risky.
Works that are remixed or modified for accessibility purposes, such as subtitling, could be removed from the Internet even if it’s fair use. If it happens to go viral they may be held criminally liable because it’s arguably available at a “commercial scale.”
Tinkerers and Repairers
Bans on getting around digital locks or circumventing DRM undermines people’s ability to experiment and modify their own content and devices or to take it to a third-party repair service. Although countries may create exceptions to DRM rules, there is no incentive for them to do so because there are no obligatory exceptions.
DRM is used for anti-competitive purposes and blocks people from building services or products for use with existing platforms.
It is a separate criminal offense to share the knowledge or tools to unlock DRM restrictions.
Repairing a part in a car with embedded software may be a crime if it requires circumvention of the car’s DRM.
Countries will be prohibited from requiring independent repair shops to be given access to the source code of the products they repair.
Modifying a home entertainment system, video game console, TV, ebook, or other type of digital platform to show content that is not available through official content providers could be illegal.
Bans on DRM circumvention undermine people’s ability to examine and pick apart software used in or with devices and content, and experiment to create interoperable content and devices. DRM is often used for anti-competitive purposes and can be used to block free software services or products to be used with existing proprietary platforms.
Excessive copyright terms of life of the creator plus 70 years keep digital creative works, including software, locked behind onerous restrictions for longer.
The TPP would prohibit countries from requiring products be supplied with open source licenses, even where this would be helpful to curb rampant information security problems.
Cosplayers and Fans of Anime, Cartoons, or Movies
Excessive copyright terms of life of the creator plus 70 years keep digital creative works, including anime, comic books, and movies, locked behind onerous restrictions for longer.
Fans putting on a themed party or cosplay based on a character from a favorite show or movie could be forced to pay a penalty or have images from it removed from the Internet. If it happens to go viral they may be held criminally liable because it’s arguably available at a “commercial scale.”
Fans could face a lawsuit or a criminal prosecution even if the author of the work they used or modified does not care about the activity in question. That means law enforcement can go after fans for derivative works on a “commercial scale” without the author of the original work filing charges.