Internet Piracy

Negotiators from a dozen Pacific Rim countries are expected to meet again this month to hash out a sweeping new trade pact, with a number of public interest groups already pushing back against a host of proposed measures long championed by Hollywood in the fight against piracy.

Attention on the Trans Pacific Partnership escalated in November and December, after Wikileaks released a purported August draft of the pact as well as other documents that showed that U.S. trade negotiators were pursuing robust intellectual property provisions, like bringing other countries into conformity with the length of U.S. copyright, and another to penalize camcording in movie theaters.

While film studios, record labels and other content industries have long championed such proposals, the leaks stirred an outcry from some public interest groups who say that the Obama administration is pursuing a Hollywood “wish list,” creating divisions with other countries who are wary of such proposals.

Some orgs, like the Electronic Frontier Foundation, have attacked the lack of transparency in the process, and one org, Demand Progress, has characterized it as an effort to pass measures that were in the Stop Online Piracy Act via a trade agreement. SOPA, as it was called, stalled out in January, 2012, after an unprecedented online protest and voluntary blackout among Internet sites.

But U.S. Trade Representative Michael Froman, in a visit to Paramount studios in November, said that there is “nothing” in the trade pact that had to do with SOPA, which had to do with limiting so-called foreign “rogue” websites that traffic in piracy. He said that “what we have in there are things that are already in U.S. law” and that the provisions are “about making sure [that], whether it is copyright or other protections, are fully enforced around the world.”

Froman also cautioned against reading too much into the Wikileaks documents, noting that “nothing is agreed to until everything is agreed to.”

The countries that are part of the trade talks include Japan, Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. South Korea may join the talks as well.

According to a leaked draft with an August date, it would prohibit the retransmission of broadcast TV signals over the Internet without the permission of a copyright holder, something that would more explicitly prohibit start-up companies like Aereo, currently engaged in high-stakes litigation with TV networks. Broadcasters contend that U.S. law prohibits a service like Aereo, while the startup contends that recent judicial interpretations confirm the legality of their digital streams.

One of the documents leaked in December spells out some of the divisions among the countries on various proposals. For instance, only the U.S. and Australia oppose a measure to limit the liability of Internet providers that host infringing content. Such third parties are shielded from liability in the U.S. only if they comply with a series of “safe harbor” provisions, including promptly removing infringing content upon notice from a copyright holder.

According to the leaked documents, other divisions between the U.S. and some other countries are over when there is criminal liability for infringement, as well as over whether countries set up statutory damages for copyright holders. Some orgs also have expressed concerns over provisions having to do with digital rights management and whether they would conflict with recent efforts in the U.S. to allow consumers to “unlock” their cell phones without penalty.

Much of the attention has been over a U.S. proposal to bring all countries in line with the length of U.S. copyright — generally the life of the creator plus 70 years, and longer for corporate-owned copyrights. According to one of the leaked documents, it is opposed by other countries.

But Anissa Brennan, vice president of international affairs and trade policy for the MPAA, says that the reality is more nuanced. Mexico, she notes, has a longer copyright than the United States, 100 years, while other countries like Peru, Chile, Australia and Singapore actually have supported the longer copyright. She also says that the leaked text should be taken with a “grain of salt,” either because it is out of date or unverified. She also notes that even the leaked content contains no provisions akin to those in SOPA, despite the alarm expressed by some groups.

“I don’t think it is reasonable or rational to try to advance something [in the trade agreement] that is not part of U.S. law,” she said.

Brennan said that the TPP is important to Hollywood not just for its intellectual property provisions but  because it focuses on opening markets and reducing tariffs. For example, the industry has an interest in seeing some countries end tariffs on digital cinema prints, and that there is equal treatment to the U.S. when it comes to emerging areas like e-commerce.

The intellectual property provisions, she says, also are important in bringing “uniformity” to copyright protection, which helps in opening markets for U.S. trade.

“I would say, as a general matter, in trade negotiations you are trying to get other countries to offer the same protections that you offer to your own rights holders,” she said.

Yet the effort to negotiate an array of intellectual property provisions has in itself come under criticism.

Bill Watson, trade policy analyst at the Cato Institute, the libertarian think tank, says that it’s an “exaggeration” to call the trade pact a backdoor attempt to impose SOPA. But he says that the effort to put copyright provisions into a free trade agreement has consequences for any further effort at reforming copyright laws in the United States.

“Imposing intellectual property rules through trade agreements has become a political liability that serves special interests at the expense of free trade,” Watson wrote recently.

Sherwin Siy of Public Knowledge, another public interest group, wrote in November that  “we’re currently in a time when Congress, the Copyright Office, and the Patent and Trademark Office are all taking a serious look at how copyright law might change, and yet the TPP locks in many of the laws that three different parts of the government are looking at changing.”

He’s referring to a series of ongoing hearings held by House Judiciary Committee chairman Bob Goodlatte, with an eye toward revising the Copyright Act. U.S. Copyright Registrar Maria Pallante has suggested revisions to the Copyright Act, including one that would modify the length of copyright terms to the life of the author plus 50 years under certain circumstances. Any major revision is expected to be years in the making.

If the the Trans Pacific Partnership includes extended copyright, “certain opponents of any reform are going to point out that the U.S. has these international obligations,” Watson says. Yet he’s not opposed to the entire trade agreement. “You don’t want to throw out the baby with the bathwater.”

By contrast, Brennan says that uniform intellectual property protections are important in establishing open markets, particularly for content creators.

The goal had been for an agreement in the TPP to be reached by the end of 2013, but talks ended last month in Singapore with no final resolution. But its future also hinges in part on whether Congress reestablishes trade promotion authority, which would allow the Obama administration to get approval of the pact with a simple up or down vote and no amendments. As could be expected, that proposal, too, has become a source of consternation by orgs wary of what the language in the final agreement ultimately will contain.

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