TPP IP chapter leak reveals US global copyright plans

TPP IP chapter leak reveals US global copyright plans

Summary: The controversial and highly confidential draft IP chapter of the Trans-Pacific Partnership agreement that will impose strict rules around copyright in Australia and 11 other nations has been leaked by Wikileaks.


Australia is opposed to limiting the liability of internet service providers who are found to have users infringing on copyright through their networks, according to the draft text of the Intellectual Property (IP) chapter of the Trans-Pacific Partnership (TPP) agreement leaked today by whistleblower website Wikileaks.

The TPP is an agreement that's currently being negotiated between Australia, the US, Canada, Japan, Mexico, Peru, Vietnam, Malaysia, Brunei, Chile, New Zealand, and Singapore, aimed at simplifying trade between the 12 nations.

The US and Australia are pushing for the agreement to be settled by the end of this year, but there are a number of outstanding issues in the agreement that negotiators have yet to agree upon.

The text of the agreement is still confidential, and won't be officially released until the agreement has been finalised and all parties have signed off on it, but overnight Wikileaks published the draft of the extensive, and contentious IP chapter of the agreement.

Australian negotiators had already confirmed to ZDNet that the IP chapter was one of the more complicated chapters currently under discussion, and the leaked text from Wikileaks confirms there are close to 100 outstanding issues that the countries still disagree on.

One particularly contentious article in the chapter is around limiting the liability for ISPs for the infringement of copyright committed by its users on its network. This has been proposed by seven of the 12 nations, but is opposed by the US and Australia. The so-called "safe harbour" proposal would ensure that barring a few exceptions, ISPs are not held responsible for what its users do on the network.

Australia's position against offering safe harbour for ISPs is surprising given that the High Court has ruled that one of Australia's ISPs, iiNet, was not responsible for copyright infringement occuring on its network.

The terms of reference for the Australian Law Reform Commission's review into the Copyright Act also specifically stated the commission was not to look at safe harbour provisions for ISPs.

Other provisions in the draft text would ban temporary storage of copyrighted materials, but Chile and New Zealand are currently proposing exceptions for caching and other technical requirements.

As ZDNet reported yesterday, the draft text does include a specific article outlining enforcement of copyright law in the 12 nations. Although Australian negotiators deny that graduated response schemes for dealing with copyright infringement are still on the table, the draft text reveals that there is a notice scheme proposed by Australia, the US and Singapore that would see copyright holders issue ISPs with infringement notices comply with the agreement by removing the infringing material.

In response, ISPs can issue subscriber information such as phone number or address to the copyright holder, and a statement saying that the subscriber "agrees to be subject to orders of any court that has jurisdiction over the place where the subscriber's address is located, or, if that address is located outside the party's territory, any other court with jurisdiction over any place in the Party's territory where the service provider may be found, and in which a copyright infringement suit could be brought with respect to the alleged infringement."

Another clause proposed by Australia, the US, Singapore, Peru and Mexico would also seek to prohibit circumvention of "technological measures" put in place by copyright holders over their works. The definition is broad and there are a number of exceptions still up for debate, but it could be seen to include the use of virtual private networks to access geoblocked content such as Netflix from outside the US. This comes despite the Australian negotiators seeking to raise the issue of geoblocking as a concern for Australian consumers as part of the negotiations.

The Australian government, and the other negotiators as part of the TPP agreement, have not historically commented on the draft leaks of the text, but the negotiators have said that the TPP agreement will not require Australia to changes its existing copyright law.

Topics: Government, Government AU


Armed with a degree in Computer Science and a Masters in Journalism, Josh keeps a close eye on the telecommunications industry, the National Broadband Network, and all the goings on in government IT.

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  • Trying to do with an international agreement...

    ...what is politically inexpedient to do with an ordinary statute. I suspect it's because secret negotiations make it a lot easier to create plausible deniability.

    I think this is one of the reasons why the framers of the U.S. Constitution specified a 2/3 vote of the Senate to ratify treaties, but we don't do many of those any more, as it's much easier to sign a compact that requires majority support in both houses of Congress, or an executive agreement that doesn't require legislative confirmation at all.

    But I'm under the impression that in Australia, treaties don't require Parliamentary approval at all; the Governor General simply follows the advice of the Cabinet and that's as far as it goes.
    John L. Ries
    • Parliamentary approval

      The treaty is signed before it goes to parliament, but it does indeed need to pass through parliament before it is ratified.

      The problem is, that once it is signed, it is very difficult to make changes to the agreement if parliament wants them to be made. So it's basically either the parliament accepts the thing as a whole, even if there are parts it doesn't like, or reject the thing entirely.
      Josh Taylor
      • Thanks for the clarification

        The U.S. Senate actually can amend treaties, but it's rare as it can force a new round of negotiations. Reservations are more common, but since it takes a 2/3 vote of the Senate to authorize the President to ratify a treaty, it's now much more common to present international agreements as either a compact, which is technically a statute passed by both houses of Congress and signed into law by the President; or as an "executive agreement" which the President ratifies on his own authority and which only has the force of an executive order. We have unfortunately seen the frequent use of the gimmick of "trade promotion authority", by which Congress grants the President the authority to negotiate trade agreements that Congress then has to approve or disapprove unchanged (I think a good case can be made that this last practice is unconstitutional, but the courts have never ruled on the issue).

        Of the above, only treaties are explicitly provided for by the Constitution and some constitutional fundamentalists have argued that those are the only international agreements that are legally valid. I think they may be right, but precedent has evolved differently.

        Regardless, it appears that the big problem in both of our countries is the expedient of trying to put unpopular measures into international agreements as a way of bypassing the normal legislative process. It's an issue that people should raise a much bigger stink about than they usually do and should probably get some too-cooperative politicians replaced.
        John L. Ries
        • nicely said

          'an issue that people should raise a much bigger stink about than they usually do'

          too much apathy.
  • There's a lot more to worry about in this TPP...

    Copyright and patent law is at the heart of the agreement, and the US wants to extend it far, far beyond what is reasonable and acceptable in other countries. In New Zealand, for example, a much less strict interpretation of copyright and patent protection enables a Government drug buying agency, Pharmac, to source drugs at reasonable prices, far lower than what Big Pharma in the US is charging US consumers. If the US gets its way, health care in other countries will become dramatically more expensive, effectively harming the health of millions if not billions of people, all to satisfy American greed.
    • Short version...

      For me, this issue can be summarised by the first and last word of your post :)