Secret, undemocratic trade agreements that put shackles on our free speech online are nothing new. Civil society organisations have been fighting the passage of the Anti-Counterfeiting Trade Agreement (ACTA) for the past six years. But some bad ideas never die. The same year that ACTA was defeated in the European Union, a new agreement was forged behind closed doors: the Trans-Pacific Partnership (TPP).
Only the negotiators and cleared trade advisers, many of whom represent private corporate interests, have official access to the secret TPP text. Because the process has been confidential, it has been difficult for public interest groups to campaign against the TPP.
Fortunately, draft versions of the agreement have been leaked. The intellectual property chapter, proposed by the US, is even more insidious than ACTA, and would have wide-ranging consequences for the right to free expression.
On the eve of the next round of TPP negotiations, taking place in New Zealand on 3-12 December, we are highlighting four ways that the TPP could lead to digital censorship.
1. Copyright, content takedowns and censorship
Under the TPP, signatory countries will be required to enact copyright enforcement measures – when requested by copyright owners – that may lead to the removal of legitimate Internet content. Online takedown requirements often open the door to abuse, as we have seen in the U.S. time and again.
Expression is often time-sensitive, such as when it involves current or political events. And while "put-back" procedures can mitigate the harm, even a few days of downtime can strike a serious blow to free expression.
Consider an ad-supported site that publishes content from users: the cost to the site of reviewing each post generally exceeds the pennies of revenue it might receive from ads. Even obvious fair uses (uses that have legal exceptions to copyright protections), such as content made available for educational reasons or access for the visual impaired, could become too risky to host. When content hosts are legally liable for user content, they can become overly cautious and remove content to shield themselves from financial and legal liability.
2. Internet Service Providers as copyright cops
The TPP would insist signatory countries provide legal incentives for Internet Service Providers (ISPs) to privately enforce copyright protection rules. It would force service providers to take on the financial and administrative burdens of policing copyright, while disregarding the consequences for Internet freedom and innovation. Open platforms for user-generated content would be especially untenable economically. And it would cripple due process by condemning content even before a minimal judicial review.
The TPP explicitly calls for ISPs to implement policies to terminate the Internet connection of repeat offenders. The difficulty in determining whether an allegation is valid, combined with the ISPs' desire to avoid legal liabilities over their users, could easily lead to an abuse of alerts or "strikes" on a user's account.
Furthermore, even if one person in a household is charged with infringement, whole households or institutions can be kicked off their Internet connection based on the IP address that is associated with the charge.
3. Blocked access to websites
It is nearly impossible for websites that host user content to determine whether all of the materials that are uploaded abide by copyright rules. Sites such as YouTube have the resources to implement active takedown systems, but even then, their methods have proven to have enormous shortcomings, resulting in the removal of legitimate content.
The TPP could lead to ISPs blocking access to websites that are alleged to infringe copyright, or "facilitate" copyright infringement. New and independent content sharing platforms would risk being preemptively blocked or filtered if they can't put a system in place that addresses infringement in a manner acceptable to the copyright holders.
It's likely that certain sites could become blacklisted by ISPs if it's determined that they didn't take sufficient precautions to protect copyrighted content. This could lead to the shutdown of independent avenues for online speech, even if a majority of the site's content is legitimate.
4. Shackles on digital content
Digital rights management (DRM) technologies are also affected by the TPP. DRM is placed on content, such as on DVDs or e-books, to prevent the material from being copied and shared. Effectively, DRM controls what you can do with the media and hardware, even if it you purchased it. The TPP provisions make it illegal to share or use available tools to break these content "locks"– even if you do not intend to engage in any infringing activities.
DRM poses an obstacle to librarians, archives, scientists, educators and persons with disabilities. While there are fair use provisions that provide exceptions to copyright, the TPP's DRM provisions would make it extremely difficult for people to free content for these purposes because the tool to break the locks are themselves illegal to distribute and share.
For instance, if a visually impaired person wants to turn a legally acquired e-book into audio, she would have to crack the DRM to do so – but it's illegal to use any available online tools. If a teacher wants to show a legally acquired film to his students, but can't because the school's equipment cannot read the format of the DVD, it would be illegal for him to use tools to break the DRM to copy the film into a format that could work. Such overreaching restrictions on content put a chokehold on global access to knowledge and information, both of which are crucial to the movement towards advancing rights to free expression.
The TPP's intellectual property chapter poses real threats to online speech. These provisions protect content monopolies of major publishing houses and movie and music studios – but at the expense of users' rights.
The TPP is unfortunately one of many international initiatives that uphold such copyright overprotection. Given the continued rapid growth of networked platforms and digital media, it is especially crucial that nations retain flexibility over their laws, rather than be tied to burdensome policies that could hinder essential human rights and economic development. Where people already face barriers to free expression, the TPP and resulting institutions that nations will be obligated to create in order to enforce copyright, could very well worsen their circumstances.
Read the basics about the TPP and find out how you can take action here.
Maira Sutton is the International Intellectual Property Coordinator with the Electronic Frontier Foundation (EFF). She spearheads campaigns and monitors emerging trends and developments in international intellectual property and innovation policies – specifically around the Trans-Pacific Partnership agreement (TPP) and the Anti-Counterfeiting Trade Agreement (ACTA).