TPP: New leaks, same principles

TPP: Copyright Enforcement, TPMs, and NZ's future

Our last blog post set out our position on the Trans-Pacific Partnership (TPP) - that we are concerned about the lack of transparency, and that we will measure its impact against our policy principles. Today, in this blog post, we share some of that analysis. Part of our job is to inform and provoke discussion on these issues, so we welcome your thoughts in response.

The past week has seen a couple of new developments in TPP-land. Last weekend, negotiations in Maui failed to reach a final agreement, as thorny issues cropped up. New Zealand and Canada disagree on dairy; Mexico and Japan on making cars and trucks. Then over the past few days, we saw the latest leaked IP Chapter of the TPP. Having read this text, we are concerned about what adopting these rules would mean for the Internet in New Zealand. We think there are both principled and pragmatic issues here.

Principle first. InternetNZ is a mission-based organisation: we promote the Internet’s benefits and uses, and protect its potential. At a technical level, the Internet depends on computers copying and sharing information. At a social level, the value of the Internet has largely been about unlocking communications. For better or worse, laws about what you can do with information fundamentally enable or restrict the possibilities of the Internet. We do not like the idea of broadened copyrights or software patents limiting the openness of the Internet in NZ.

Now on to pragmatism. In global terms, New Zealand is a tiny country of 4 million people, tucked away in a bottom corner of the world. How does such a tiny place share its ideas or products with the world? We reckon that the Internet is a big part of any sensible answer, conquering the “tyranny of distance” and helping us to get ideas in and exports out. Socially and economically, we stand to gain from balanced rules on intellectual property, offering reasonable protection to creators while allowing us to re-mix and take inspiration from existing ideas.

Bringing it back to the TPP, I would like to highlight two areas of specific concern: enforcement of copyright, and broadened criminal liability for bypassing TPMs.

Presumptions in copyright proceedings

Based on the latest leaked text, the TPP would fundamentally shift the balance of copyright proceedings to favour a finding of infringement (hat tip to Rick Shera for pointing this out). Rather than the party alleging infringement having to prove all elements in its case, Courts would presume: (1) that copyright exists, and (2) that the alleged author did in fact create the work. To defend themselves where copyright does not exist, or the alleged owner is not the true owner, defendants would have to bring evidence. This would make infringement actions much easier to bring and much harder to defend.

InternetNZ thinks this is a recipe for bullying tactics by those who claim to hold copyright. It reverses the ordinary approach in both criminal and civil law - that the party seeking court action should bear the burden of proving their case. If this leaked text is accurate, we are disappointed indeed to see such an approach taken seriously in the TPP negotiations.

Liability for bypassing TPMs

Again based on the latest leaked text, the TPP would broaden criminal liability for bypassing technical protection measures (TPMs). TPMs are digital locks on content, such as the encryption which limits DVDs to playing on devices with the right decoding key. We can understand why content owners might want a digital lock, because the digital world allows easy, perfect copying of data. Without TPMs, everyone’s cousin might upload the latest Downton Abbey episode without thinking about it.

TPMs run alongside copyright, but do not always respect situations where copyright would get out of the way. New Zealand law permits certain exceptions to the exclusive copyright of the owner. For example, written works without a commercial Braille edition may be translated into Braille, and provided at cost to people with a print disability. Where a work is protected by TPMs, this kind of translation might require the TPM to be broken or bypassed. People skilled in doing that might be hard to find or very expensive. They might also be worried about criminal liability.

The TPP would appear to broaden criminal liability for bypassing TPMs. Modeled specifically on the Digital Millennium Copyright Act (DMCA) from the USA, TPP rules would require sanctions for anyone who markets products or services directed to circumventing TPMs, independent of any actual copyright infringement. We think this separation of technical protection from actual copyright is misplaced.

Copyright balances incentives for creators against flexibility for everyone else. New Zealanders have been eager to take up region-free DVD players, and geo-unblocking services to access “overseas-only” media. We are used to the benefits of innovation to overcome our territorial distance and small size as an international target market. Expanded liability for bypassing TPMs risks a chilling effect on that innovation, ultimately limiting the ability of New Zealanders to enjoy and use content.

Transparency and Quality

Stepping back to look at the TPP as a whole, we share concerns expressed by civil society organisations here and overseas. We reckon that open discussion is the best way to test ideas and avoid mistakes - that’s why we share our thinking in blog posts like this one!

Deals like the TPP are bets on which future we want to build. Sir Paul Callaghan said in 2011 that the next $20 billion in NZ exports cannot come from dairy alone. InternetNZ is betting on talented Kiwis to keep taking cool technology and vibrant culture to the world, and supports policy approaches which enable that. We will not support a TPP deal where restrictive intellectual property rules sacrifice that future at the altar of international dairy markets.