Stifling Freedom of Expression: The Internet Under the TPP

Posted by Joel Milne on Mon, 12/31/1973 - 16:48

Last week, the 15th round of negotiations for the Trans-Pacific Partnership wrapped up in New Zealand. The secretive agreement, which has allowed for very little public input, will provide new ways for Big Media to criminalize your Internet use. Concerned about what the Internet will look like under the TPP? You should be. With research compiled by our Coalition partners at the Electronic Frontier Foundation (EFF), we’ve put together a breakdown of some of the most concerning proposals.

Copyright Term Extensions
The original intention of copyright was to encourage creativity by guaranteeing that the author could profit from their work, and would therefore have incentive to continue creating. However it was not meant to restrict the creativity of others. The TPP proposes even longer terms, promoting ownership rights above creativity, and restricting the ability of others to build on the original work.
The EFF has argued that the extension of already long copyright terms puts a high price on the ability of the public to use copyrighted works, and may do little to encourage creativity. In fact, they argue, research has shown that the optimal copyright term is 14 years (not the 70 proposed by the TPP). These extensions will not enhance creativity, but will rather entrench the control of media conglomerates.
What this means for users: if you wanted to improve on, remix, or republish content, you might have to pay up, or wait an extra 20 years.
Limitations and Exceptions
In order for copyright to fulfill its original purpose of promoting innovation and creativity, there must be clear exceptions—not just restrictions—that allow creators to build on the work of others. Exemptions to the TPP—which are being pushed for by citizens and public interest groups—could also allow countries to tailor rules according to their national needs, and could ensure that service providers are not held responsible for the actions of users.
A good example of such an exception that’s used by the U.S. is ‘fair use’, which the EFF explains “allows consumers to make a copy of part or all of a copyrighted work, even where the copyright holder has not given permission or objects to your use of the work.” This facilitates the ability to innovate and build on existing works, without taking away from the rights of the author.
However there are no such exceptions proposed in the TPP, and not all countries provide for these exceptions in their national law. If the standards are being raised in terms of criminalization and copyright term extensions, there also needs to be a clear standard for exceptions built into the TPP.
What this means for users: if you wanted to use content for a school project, create a parody, or sample copyrighted content, you could be fined or face criminal charges.
Three Step Test
A big problem with trying to implement exceptions and limitations to copyright is that there are no clear rules around what should count as ‘fair use’. A generally accepted rule, which is supported by a variety of trade agreements, is known as the ‘three step test’.
However the test has never been very clearly or consistently applied, and as the EFF points out, in recent years the interpretation of the test has increasingly tipped in favour of rights holders, rather than being used to justify fair use and innovation. If used in the TPP, the three-step-test could actually restrict the ability to create exceptions.
What this means for users: if you wanted to do build on or republish existing content, you may be challenged to prove that your creations count as fair use, or face a penalty.
The TPP will change how we behave online, threatening our freedom of expression, and criminalizing our fundamental ability to use and create online.