The Trans-Pacific Partnership (TPP) was a secretive, multinational trade agreement that threatened to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement. The agreement in its original form fell apart when the United States abandoned it in November 2016 following the U.S. Presidential election. However, an 11-country version of the agreement called the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) was signed by the remaining 11 countries in March 2018, with almost all of the IP chapter of the agreement suspended.
The main problems with the original TPP were two-fold:
(1) Digital Policies that Benefit Big Corporations at the Expense of the Public: The IP chapter would have had extensive negative ramifications for users’ freedom of expression, right to privacy and due process, as well as hindering peoples' abilities to innovate. Other chapters of the agreement encouraged your personal data to be sent across borders with limited protection for your privacy, and allowed foreign corporations to sue countries for laws or regulations that promote the public interest.
(2) Lack of Transparency: The entire process has shut out multi-stakeholder participation and was shrouded in secrecy.
The twelve nations that negotiated the TPP were the U.S., Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei Darussalam. The TPP contained a chapter on intellectual property covering copyright, trademarks, and patents. The official release of the final TPP text confirmed what we had long feared: that U.S. negotiators pushed for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement (ACTA).
All signatory countries would have been required to conform their domestic laws and policies to the provisions of the Agreement. In the U.S., this would have further entrenched controversial aspects of U.S. copyright law—such as the Digital Millennium Copyright Act (DMCA)—and restricted the ability of Congress to engage in domestic law reform to meet the evolving needs of American citizens and the innovative technology sector. Overall, the TPP's provisions that recognize the rights of the public are non-binding, whereas almost everything that benefits rightsholders is binding.
The final IP chapter included many detailed requirements that are more restrictive than current international standards, and would have required significant changes to other countries’ copyright laws. These include obligations for countries to:
In short, countries would have to abandon any efforts to learn from the mistakes of the United States and its experience with the DMCA over the last 16 years, and adopt many of the most controversial aspects of U.S. copyright law in their entirety. At the same time, the TPP's IP chapter does not export the limitations and exceptions in the U.S. copyright regime like fair use, which have enabled freedom of expression and technological innovation to flourish in the United States. It includes only a placeholder for exceptions and limitations. This raises serious concerns about other countries’ sovereignty and the ability of national governments to set laws and policies to meet their domestic priorities.
Although the IP chapter contains the worst of the agreement's anti-user provisions, we were also concerned by provisions elsewhere that:
TPP raises significant concerns about citizens’ freedom of expression, due process, innovation, the future of the Internet’s global infrastructure, and the right of sovereign nations to develop policies and laws that best meet their domestic priorities. In sum, the TPP puts at risk some of the most fundamental rights that enable access to knowledge for the world’s citizens.
The U.S. Trade Representative (USTR) has pursued a TPP agreement that will require signatory counties to adopt heightened copyright protection that advances the agenda of the U.S. entertainment and pharmaceutical industries agendas, but omits the flexibilities and exceptions that protect Internet users and technology innovators.
The TPP would have affected countries beyond the twelve that finalized the original negotiations. Like ACTA, the TPP Agreement is a plurilateral agreement aimed at creating new heightened global IP enforcement norms. Countries that are not parties to the negotiation would likely have been asked to accede to the TPP as a condition of bilateral trade agreements with the U.S. and other TPP members, or evaluated against the TPP's copyright enforcement standards in the USTR's annual Special 301 process.
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