When Trade Agreements Threaten Freedom

Carolina RossiniDirector for International Intellectual Property

carolina@eff.org

It’s so easy that we take it for granted.

BUTIf we take freedom for

granted, even in obscure trade agreements, we may allow those agreements to

impede technological innovation and public

interest.

Conscious Choice To Be Open

Three takeaways

• Complex rights issues are being negotiated in non-transparent, non-democratic fora, undermining WTO and WIPO and national efforts of policy and law making => Policy laundering

• Copyright holder rights are expanding and ISPs are being pressured, while exceptions and limitations/fair use are being threatened

• We all have our roles > awareness raising, capacity building, influencing the policy making process, taking the streets

• TRIPS did not turn out to be, as many developing countries had hoped, the end of multinational companies’ plans for the globalization of intellectual property rights.

Peter Drahos

Source: WTO, Staff Working Paper ERSD-2012-21 https://www.wto.org/english/res_e/reser_e/wpaps_e.htm

The interconnections among hub-and-spoke systems create networks that transmit IP provisions across RTAs, and eventually from one domestic IP regime to another.

Source: WTO, Staff Working Paper ERSD-2012-21 https://www.wto.org/english/res_e/reser_e/wpaps_e.htm

• The Anti-Counterfeiting Trade Agreement is an agreement to create new global IP enforcement standards, which was negotiated from 2007-2010 by the U.S., the EU, Canada, Australia, New Zealand, Mexico, Singapore, Morocco, Jordan, Japan and South Korea.

• The final text of ACTA (link to October 2011 test) does not expressly mandate Internet intermediaries to disconnect Internet users for repeat allegations of copyright infringement;

• BUT article 27 opens doors – including incentives for public/private cooperation for enforcement.

CETA

Scope

• to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement.

• Express goal of USA > APEC members:

• 21 countries: 40% of world’s population

• Like ACTA, the TPP Agreement is a plurilateral agreement that will be used to create new heightened global IP enforcement norms.

• Countries that are not parties to the negotiation will likely be asked to accede to the TPP as a condition of bilateral trade agreements with the U.S. and other TPP member

Digital Locks

• Overrides national copyright law exceptions.

• Chilling effect on scientific research and publication.

• Anti-competitive misuse.

• Stifled technological innovation and creation of interoperable devices.

• Threatened free and open source software

See: “Unintended Consequences: 12 Years Under the DMCA @ http://www.eff.org/unintendedconsequences

https://www.eff.org/document/tpp-tpms-and-civil-rights-presentation

Impacts of DMCA Extension

TPP article 16.3 mandates a system of ISP liability that pushes a framework beyond ACTA and possibly the spirit of the DMCA, since it opens the doors to:

• Three-strikes policies and laws that require Internet intermediaries to terminate their users’ Internet access on repeat allegations of copyright infringement

• Requirements for Internet intermediaries to filter all Internet communications for potentially copyright-infringing material

• ISP obligations to block access to websites that allegedly infringe or facilitate copyright infringement

• Efforts to force intermediaries to disclose the identities of their customers to IP rightsholders on an allegation of copyright infringement.

E&L at risk > 3-step-test debate

• to define the freedom of signatory countries to create “exceptions and limitations” to copyrights.

• The US + Australia (+ Peru)

• depending on the actual text and its interpretation, the three-step test will actually restrict fair use and other copyright exceptions and limitations

• Fair use accounted for more than $4.5 trillion in annual revenue

• Has also generated jobs > 233000, just in California • Fastest growing sector > ITC based on fair use• Investors and VC would stop investing if something

like SOPA/PIPA was passed• There has been a increase in the production of

cultural goods• More at: https://www.eff.org/deeplinks/2012/09/copyright-and-campaign-misinformation-new-study-affirms-less-

copyright

• If Australia expands fair use alongside with safe harbors for ISPs, there is a potential of an extra $600 million on their economy

•Australia sector relying on fair use contributes to 14% of Australia’s GDP = $182 billion per year

• More at https://www.eff.org/deeplinks/2012/09/copyright-and-campaign-misinformation-new-study-affirms-less-copyright

• The 2012 study showed that flexible fair use showed positive impact in the growth of tech companies

• Singapore fair use amendments are correlated with a 3,33% increase in value added (%GDP growth) = this resulted in a total increase of 2.27 billion for private tech companies as of 2010 (5 years of expanded fair use implemented)

• Before this policy change, tech industry in Singapore was in recession

• AND THERE WAS no significant change in the copyright industry sector

International negotiations may seem abstract and obscure.

But a trade agreement or treaty do become national law.

Secrecy negotiations are not democratic, violate the open government principles

If we take freedom for granted, even in obscure

trade agreements, we may allow those agreements to

impede technological innovation and public

interest.

SO WE MUST TAKE ACTION ANYWAY

Obrigada - carolina@eff.org

Global Chokepoints is an online resource created to document and monitor global

proposals to turn Internet intermediaries into copyright police. These proposals harm

Internet users’ rights of privacy, due process and freedom of expression, and endanger the

future of the free and open Internet.

https://globalchokepoints.org/