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Digital rights and the TPP: All you need to know about the big trade-off

The Trans-Pacific Partnership is entering the final stages of closed-door negotiations, but there are still major questions being raised about what it means for copyright law and digital rights.

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Wikileaks

The Trans-Pacific Partnership (TPP) is set to massively reshape international trade for 12 of the most powerful countries across the Asia-Pacific region, but there are also concerns about "what might be offered up in exchange for market access".

While brokering the deal has taken years, Australia's Federal Minister for Trade and Investment Andrew Robb said a conclusion is now "within reach" and the basic elements of the agreement are expected to be wrapped up "before the end of the year". But as the deadline looms, major concerns are being raised over the effects the TPP will have on digital freedoms, civil liberties and copyright law in the US, Australia and other regions.

What is the TPP?

The Trans-Pacific Partnership is a major trade agreement described by Australia's Department of Foreign Affairs and Trade (DFAT) as "realising the vision of a free trade area of the Asia-Pacific".

Currently being negotiated between 12 countries -- including the United States, Australia, Singapore, New Zealand, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru and Vietnam -- the deal is set to cover just under 40 percent of global GDP according to numbers from DFAT.

While different signatories have come on board over the years, the genesis of the TPP dates back to 2004, with negotiations taking place behind closed doors since 2010 -- the most recent of which occurred in Sydney this month.

Closed door negotiations

Government messaging around the TPP has focused on promoting economic development, reducing barriers to trade and getting a fair deal for farmers and workers. The Office of the United States Trade Representative has gone further in its position on the TPP, saying it's vital to the country's position in the region.

"The rules of the road are up for grabs in Asia," it says on its TPP explainer site. "If we don't pass this agreement and write those rules, competitors will set weak rules of the road, threatening American jobs and workers while undermining U.S. leadership in Asia."

Despite this rhetoric, negotiations around the TPP text have been classified. However, leaked versions of the contentious Intellectual Property chapter of the TPP have surfaced on Wikileaks, indicating the negotiating positions held by the countries involved and the amendments sought by different parties.

After releasing draft text of the IP chapter in November 2013 (taken from August 2013 talks), Wikileaks this month published an updated version of the document, sourced from the May 2014 round of negotiations held in Vietnam.

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Electronic Frontier Foundation

While DFAT says it has held more than 700 public consultations on the TPP, copyright advocacy group Australian Digital Alliance contests "no formal stakeholder program has been held with the negotiating rounds since the August 2013 Brunei round, and the recent negotiation rounds have been held with short (or no) public notification".

DFAT also says that it "does not share negotiating texts with corporations, or anyone else"; however, consumer advocacy group Choice argues that "big business has had a seat at the table" and the Wikileaks Party alleges that "there are over 600 business representatives serving as official US trade advisors who have full access to an array of draft texts and play an inside role in the process".

Alongside consultation, consumer advocates are calling for the release of the full text of the agreement as it stands in order to allow greater transparency.

"Once the document is signed, it is very unlikely to be changed, and very likely to be waved through Parliament with limited oversight," said Brendan Molloy, president of Australian political party and digital advocacy group, the Pirate Party. "It is beyond time that the text was made public."

The fine print on piracy

One of the more contentious chapters of the agreement is the Intellectual Property chapter which covers the regulation of copyright, piracy, patents, trademarks and counterfeiting among signatory countries -- issues that hold major implications for the digital rights of individuals in the signatory countries.

The TPP outlaws the infringing of copyright for "commercial advantage" or "financial gain" (though it is unclear whether 'pirating to avoid paying for a box set of "True Detective" falls into this category), and criminalises the "wilful importation" of pirated copyright goods on a commercial scale. Individuals can also be penalised for filming, copying or transmitting movies in a cinema.

The TPP also outlines that rights holders can use "technical protection measures" to safeguard against breach of copyright, and that individuals who circumvent these measuresor those who provide devices, services or "components" to do so -- are subject to penalties.

Although specific media formats aren't mentioned (though we love the repeated use of the word "phonogram"), circumventing DRM protections on physical media, using VPN blockers and sharing files through torrenting services could well fall into this final category. Even hosting torrenting software on a home PC could be seen as an attempt to thwart technical protection measures.

Australian consumer rights group Choice has also argued that the TPP may "lead to greater protection for companies using geo-blocking on movies, music, books and software, and could lead to enforcement provisions against those who seek to get around these blocks."

Criminal penalties

Throughout the leaked IP chapter, there are countless mentions of "criminal procedures and penalties" for copyright infringement and "penalties of sufficient severity to provide a deterrent" for further breaches.

It's not just big-time pirates in the crosshairs -- the TPP also stipulates that signatories to the agreement and its penalties must "ensure that criminal liability for aiding and abetting" are instituted under their laws.

"The US push for endless criminalisation of even private activities (partially supported, I am afraid, by Australia) is frankly horrifying," said Associate Professor Kimberlee Weatherall from Sydney University's Faculty of Law.

The US proposals would, she said, "lock Australia into a new, complex, and damaging set of IP obligations that will be giving users, IP owners, and policymakers headaches for many years to come."

The Australian Digital Alliance has also raised concerns about criminalisation, especially for Australians.

"Criminalisation of copyright infringement impacts disproportionately on Australia," ADA's Trish Hepworth recently wrote. "The US has long enjoyed more flexibility and adaptability with its 'fair use' doctrine protecting many non-financially harmful, trivial or socially useful actions over there. Our citizens have no such flexibility.

"This might explain why the US is so unconcerned about pushing increased criminalisation. Kids taking video selfies for private sharing in a movie theatre might be fair use in the USA, the TPP is pushing for it to be a criminal offence in Australia."

The lifespan of copyright

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Wikileaks

In the United States, perpetual copyrights and patents are prohibited, but extensions to copyright are allowed -- a loophole sometimes referred to as the 'Mickey Mouse' clause (named for the constantly renewing legal protection that keeps the famous character under Disney's control).

While copyrighted works normally pass into the public domain 50 years after the death of the creator (in the case of the US), the TPP is looking to extend this further with the draft text proposing a delay of up to 100 years.

It's not just digital content covered by IP provisions in the TPP -- there are major implications for the pharmaceutical industry over drug patents. The TPP could "allow companies to get new patents on existing drugs by making small changes to their formulation" according to Choice, meaning that cheap generic drugs are blocked from the market.

International aid agency Médecins Sans Frontières called this a "steamroll" by US negotiators favouring "commercial interests" over public health.

Where Australia stands

With 12 countries negotiating on the TPP there are plenty of vested interests and diverse legal implications. But with massive powers such as the United States tussling over the same clauses as smaller countries such as Vietnam and New Zealand, it's not necessarily an even playing field for debate.

The key to getting the agreement passed -- the main goal for all involved -- all comes down to compromise. Trade Minister Andrew Robb says "better market access for our exporters of agricultural products" is a key focus for Australia, but in order to obtain this, Australia may well need to compromise on some other elements of the TPP.

As the Pirate Party's Brendan Molloy puts it, "Australia should not be sacrificing a digital future for short term gains in mining and agriculture". However, as it stands, Australia's IP future could well ride on the back of Australian cattle.