Saturday, 16 November 2013

Consumers' digital rights are threatened by this Pacific trade deal

This week's leak of a recent version of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP) has sparked much outrage over the maximalist copyright and patent policies that the United States government, in particular, is seeking to impose on countries around the world, says CI's digital expert Jeremy Malcolm.   

Using the cover of trade negotiations, which were once used to negotiate mutual reductions in import tariffs, the TPP seeks to make significant, permanent changes to the intellectual property laws and policies of the countries of the Asia-Pacific region – not to mention the many other significant legal and regulatory changes contained in other chapters of the agreement.

These changes would limit the ways that consumers can use digital products, and allow copyright owners to meddle with our access to the Internet, whilst jacking up the prices of IP-intensive goods such as books and medicines.

The United States is not the only country pushing anti-consumer intellectual property rules – for example Mexico wants a life plus 100 year copyright term, which would leave Franz Kafka's works still under copyright today, and Australia is bucking the recommendations of its own IT pricing inquiry in pushing for tougher limitations on the circumvention of digital locks.

Whilst there may have been some justification in negotiating tariff rates behind closed doors, there is no justification to change intellectual property laws in the same opaque and unaccountable fashion.

These are issues on which the public has a right to know what is being negotiated on their behalf and to participate in shaping the negotiations.

There remains a good case that the TPP, as a whole, ought to be rejected regardless of its content unless there is a radical improvement in the transparency and accountability of the negotiation process.

But at the end of the day, there are powerful commercial and political forces behind the TPP, and significant stakes beyond just intellectual property, which might just push the agreement over the line.

If that happens, we need to pay a lot more attention to the good (or at least, the less bad) proposals in the IP chapter of the TPP, and to support those as a fallback position to the rejection of the whole deal.

In this context, a point that many commentators have missed is that most of the other countries negotiating the agreement are pushing back against the most extreme proposals with much more balanced rules, some of which are actually good for consumers.

These contributions could be the saviour of the TPP for consumers if, despite our wishes, the agreement is pushed through regardless.

For example there are innovative proposals from Chile, Vietnam and Peru to uphold the public domain, a Mexican proposal to preserve parties' flexibility to refuse recognition of software patents, and alternative and more flexible approaches to the vexed questions of digital locks and ISP liability.

The TPP doesn't deserve to succeed – but if it will anyway, we need to take a more nuanced approach to it than just opposing the text's most extreme positions.

We also need to recognise those provisions that could serve consumers relatively well.

Whilst maintaining our call to stop the TPP if the negotiators won't let us be a part of it, we can also, quite consistently with that, demand that any new treaty or agreement should be based around provisions that are in the broad public interest rather than narrow corporate interests – and there are some such provisions in the leaked TPP text, that deserve qualified support from the consumer movement.

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