Introduced in 2006, the free trade partnership between the United States and 11 countries of the Pacific should soon include a new chapter on intellectual property that will oblige Internet actors to enforce strict surveillance of copyright infractions. Negotiations surrounding the coming section of the TPP were kept secret until WikiLeaks released the draft version last Wednesday, sparking an uproar.
Referred to as censorship and deliberate conspiracy, on social networks and in the press, the text is considered by WikiLeaks as one of the most controversial chapters in the already very polemical Trans-Pacific Partnership (TPP). In a press release, Julian Assange insisted that the new addition would “ride roughshod over the intellectual and creative commons”.
“The draconian model of the TPP poses great risks for Open Access,” worries Matthew Rimmer, associate professor at the ANU College of Law and intellectual property specialist. The document provides for high levels of protection of authors’ interests, but ignores the balance that has been setting in between intellectual property and fundamental rights to access knowledge and information. “Such stronger technological protection measures will disrupt open access in respect of copyright works. Deviously, the Trans-Pacific Partnership shrinks the policy space available for copyright exceptions,” explains Matthew Rimmer. “ The TPP is literally a Mickey Mouse agreement designed to boost the interests of Hollywood studios, like Disney.”
He is indignant about the introduction of ever-more severe legal measures against those who wish for a more open access to education, science, knowledge and governmental information. “The arsenal of civil remedies and criminal offences could also be a significant risk for open access developers, especially about past controversies like the one involving Aaron Swartz.” In 2011, a student and Open Access activist at MIT took his own life following severe prosecution for stealing millions of scientific articles from the paid database JSTOR. His purpose was to make these academic, hence mostly publicly funded, works freely available online.
Risks of international contamination
Such additions to the TPP could likewise contaminate the Transatlantic Trade and Investment Partnership (TIPP), presently in negotiation between the European Union and the United States. At a time when the nature of intellectual property is being reconsidered to promote Open Access and circulation of information and knowledge, a deal on severe enforcement of copyright between the countries of the TPP could ultimately slow down or even reverse progress on an international scale. What’s more, the private sector, particularly powerful lobbies, may feel encouraged by the agreement to exert increased pressure on national governments and render legislators more risk-averse.
Just as in the case of the disclosure of the ACTA agreement (Anti-Counterfeiting Trade Agreement), the leak of the TPP sounds the alarm concerning the future of cyber-freedoms. The European Union almost unanimously rejected this similar project, precisely because of the inherent risk of misuse leading to the breach of fundamental freedoms. Such provisions are dangerous because of what they induce but also because of the alternative paths they undermine and could extinguish. On the frontline of this collateral damage: open access.