Setting the TPP Record Straight

The following post is written by Amanda Wilson Denton, Counsel to International Intellectual Property Alliance (IIPA), and is reprinted here with permission.

Last week, WikiLeaks published what appears to be a confidential draft negotiating text dating back to August of this year, of the Intellectual Property Rights (IPR) Chapter of the Trans-Pacific Partnership (TPP).  If it is what it purports to be, the draft reveals a snapshot in time of the ongoing work of the participating countries to hammer out an agreement in Intellectual Property Rights, just one of 20 areas of commercial relations that are under continued negotiation among the parties.

Some commentators, such as Margot Kaminski, have suggested that the leaked TPP IPR text reflects an attempt by USTR to “bind” U.S. law through a trade agreement, and Susan Sell has referred to the agreement as an attempt to resurrect the Stop Online Piracy Act and the Anti-Counterfeiting Trade Agreement. 

These are serious charges that deserve careful scrutiny.  In fact, an examination of the U.S. positions manifested in the text reveals exactly the opposite.  At least in the copyright arena (the only aspects of the text that we have reviewed), U.S. proposals are not only completely consistent with U.S. law, but reflect standards from existing Free Trade Agreements (FTAs) that have already been approved by Congress.  The U.S. proposals mirror the current duration of copyright in U.S. law.  They track the provisions already agreed in previous FTAs regarding the technologies that rights holders use to control access to their works and limitations on liability to benefit ISPs, including the FTA agreed between the United States and Korea that entered into force in 2012.  (See, e.g., sections 18.4.7 and 18.10.30 of that text, respectively.)  And not only have we seen these provisions repeatedly in previous FTAs, but they have been endorsed by major technology groups, up to and including the latest FTA to enter into force, the Korea-U.S. Free Trade Agreement.

Most importantly, the issue that generated controversy surrounding SOPA—website blocking through DNS blocking—is entirely absent from the text as recently noted by Ambassador Froman.  Froman specifically raised the issue of “blocking rogue Internet sites from accessing the Internet from the United States” in a recent interview published in the November 18, 2013 issue of Washington Trade Daily.  He stated unequivocally: “There is nothing in the Trans Pacific Partnership, zero, that has anything to do with that.”

The one provision related to copyright that we could identify as not already appearing in a Congressionally-approved FTA is a provision related to liability for aiding and abetting criminal copyright infringement, a well-established and important part of U.S. law rooted in our most basic criminal provisions for accessories to crimes and conspirators that, if mirrored in other countries, would give the United States a greater ability to challenge the operations of foreign criminal syndicates engaged in criminal enterprises. 

In sum, the putative U.S. positions revealed in the leaked text would be consistent with U.S. law and prior free trade agreements approved by Congress, and most importantly would help to achieve better copyright protection among our trading partners.  Representatives Howard Coble and Judy Chu underscored the importance of that objective earlier this week when they observed that the importance of the copyright sectors to the U.S. economy provides “a compelling argument for effective laws that promote and foster our economic growth here and abroad.”

While we understand that there are parties that don't like present U.S. law and policy, this leaked text demonstrates a fealty to existing U.S. law, and not an abandonment thereof.  Any comparison to SOPA/PIPA is completely inappropriate and inaccurate.