Written by Carolina Rossini and Kurt Opsahl
TPP Creates Legal Incentives For ISPs To Police The Internet. What Is At Risk? Your Rights.
The Trans-Pacific Agreement draft chapter on Intellectual Property – as of its current leaked version [PDF], article 16 – insists that signatories provide legal incentives for Internet Service Providers to privately enforce copyright protection rules. The TPP wants service providers to undertake the financial and administrative burdens of becoming copyright cops, serving a copyright maximalist agenda while disregarding the consequences for Internet freedom and innovation.
TPP article 16.3 mandates a system of ISP liability that goes beyond DMCA standards and U.S. case law. In sum, the TPP pushes a framework beyond ACTA and possibly the spirit of the DMCA, since it opens the doors for:
Service providers are the conduits of free expression. By enabling free or low-cost platforms that enable anyone to reach an audience of millions, ISPs have democratized media and enabled innovative ideas to spread quickly—without the gatekeepers of traditional media.
Private ISP enforcement of copyright poses a serious threat to free speech on the Internet, because it makes offering open platforms for user-generated content economically untenable. For example, on an ad-supported site, the costs of reviewing each post will generally exceed the pennies of revenue one might get from ads. Even obvious fair uses could become too risky to host, leading to an Internet with only cautious and conservative content.
Moreover, the TPP insists upon notice and takedown regimes at the price of a free and open Internet. Expression is often time-sensitive: reacting to recent news, promoting a candidate for election. Online takedown requirements open the door to abuse, allowing the claim of copyright to trump the judicial system, and get immediate removal, before the merits are assessed. Put back procedures can mitigate the harm, but even a few days of downtime can strike a serious blow to freedom of expression.
If the copyright maximalists have their way, the TPP will include a “side-letter,” an agreement annexed to the TPP to bind the countries to strict procedures enabling copyright owners to insist material are removed from the Internet. This strict notice-and-takedown regime is not new—in 2004, Chile rejected the same proposal in its bi-lateral trade agreement with the United States. Without the shackles of the proposed requirements, Chile then implemented a much more balanced takedown procedure in its 2010 Copyright Law, which provides greater protection to Internet users’ expression and privacy than the U.S. Digital Millennium Copyright Act (DMCA)’s copyright safe harbor regime.
Instead of ensuring due process and judicial involvement in takedowns, the TPP proposal encourages the spread of models that have been proven inefficient and have chilling unintended consequences, such as the HADOPI Law in France or the DMCA.
These strict rules are not only bad public policy, but have the potential to impinge on national sovereignty by imposing, through a non-transparent process, significant changes in existing national law, such as the Chile judicial takedown system or the Canadian system where ISPs provide a conduit for notices, but not extra-judicial takedowns. Where a country has implemented a system more balanced than the DMCA, the TPP should not overrule popular legislative process or bring a one-size fits all approach for substantive and procedural rules. .
By introducing a series of ISP liability safeguards, the TPP may promote the actual extension of ISPs secondary liability, something the entertainment and publishing industries dearly want. In a 2011 testimonial on whether Malaysia should join the TPP, the International Intellectual Property Alliance (IIPA) made clear that approach [PDF], seeking to bring new intermediary liability along with a strictly limited safe harbor.
Intermediary liability is not universally recognized. The U.S. Trade Representative – the agency leading the TPP negotiations - has recognized that creating limitations on liability encourages countries to adopt intermediary liability in the first instance. Indeed, if countries want to get off of the U.S. intellectual property blacklist (the Special 301 report - a review of other countries’ intellectual property laws and enforcement standards), the USTR suggests that adopting the TPP can solve their problems. From the 11 negotiating TPP Countries, 5 are in the 301-2012 list [PDF] (Chile, Brunei, Peru, Mexico, Vietnam).
We’re not the only ones who see this as a threat to Internet freedom. Both the UN Special Rapporteur on Freedom of Opinion and Expression and the European Court of Justice agree.
And Article 19 of the Universal Declaration of Human Rights should still be the guiding light for TPP. It declares:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
To allow people to hold opinions without interference, and to seek, receive and impart information, it is critical to have a policy infrastructure that does not impose liability on Internet intermediaries. By forcing intermediaries to become much more than service providers, many of these proposals attempt to make Internet intermediaries the sole arbiter and enforcer of the law instead of courts and judges. ISPs are not well equipped to make these decisions, and these proposals lack the due process rights that are so critical in the courtroom.
To the extent that governments wish to deputize Internet Intermediaries to enforce public policy objectives, the intermediaries must abide by the due process standards that apply to governments. At a minimum, this includes transparency, accountability, accuracy, precisely targeted measures that don’t cause collateral damage, a timely and affordable means of redress, and fairness and proportionality of cost distribution. The most appropriate role for Internet intermediaries is limited to forwarding notices of alleged infringement to their customers, and then allowing the judicial system to determine the subsequent steps. This includes protecting the identity of the user.
Through the support of people like you, we've beaten back SOPA, PIPA and ACTA. We can do the same to the TPP, by shining a light on the copyright maximalists agenda, by explaining the implications of these back room deals, and – with your support – we can prevent the slow erosion of liberty on the Internet.
 For a detailed comparison between TPP and ACTA see http://infojustice.org/wp-content/uploads/2012/03/table-03222012.pdf
 Report to the UN General Assembly Human Rights Council, United Nations Special Rapporteur on Freedom of Opinion and Expression, June 2011. Available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf