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Monday, March 14, 2011

US Proposals For Secret TPP 'Son Of ACTA' Treaty Leaked; Chock Full Of Awful Ideas | Techdirt

US Proposals For Secret TPP 'Son Of ACTA' Treaty Leaked; Chock Full Of Awful Ideas

from the exporting-protectionism dept

We've mentioned a couple of times that now that ACTA is "complete", if not yet approved, USTR negotiators have moved on to what many are calling the son of ACTA in the form of the Trans Pacific Partnership Agreement (TPP). The USTR has shown what it's learned from the ACTA negotiations: which is that it can absolutely get away with unprecedented levels of secrecy. It has no problem sharing details with industry representatives, but the public and consumers who will be most impacted by the intellectual property rules found in TPP are kept completely away. However, as with ACTA, there are leaks. KEI has been able to get a leaked version of the current proposal from the USTR, and as we'd been hearing, it really is another industry wish-list of stricter anti-consumer intellectual property rules, that go well beyond current US law. This is the entertainment industry and the pharma industry trying to bypass the actual law-making process and using "friends" within the USTR to get such rules in place via secretive, non-democratic, treaty making processes. It's really a sickening display of crony capitalism and regulatory capture at work. Anyone working in the USTR should be ashamed of this document.

The early reports on TPP was that the USTR would only consider ratcheting up intellectual property laws to more draconian states. It would not even consider the idea of decreasing the already too strict levels of intellectual property laws. It also would not bother with increasing consumer protections or important exceptions to stronger intellectual property law -- even if it's been shown that those exceptions have a much greater impact on the economy than the IP laws themselves.

Some key points:

  • It would require that countries participating ban parallel import for any copyright holder who wants it. That is, if a copyright holder says no, countries would have to block your ability to purchase legal and authorized products in one country and import them into another. This is the so-called "grey market" which should be perfectly legal, but which many companies would like to block so they can price things much higher in some countries.
  • It would require criminal enforcement for certain cases of circumventing DRM even when there's no copyright infringement, going beyond existing treaties even when there's no copyright infringement. There are some exceptions, but rather than allow countries to determine their own exceptions, it defines the exceptions and actually says countries cannot go beyond those.
  • It would impose liability on ISPs for dealing with infringing works that goes well beyond the DMCA. Yes, Hollywood may finally be able to force ISPs to act as their personal business model cops -- something they've been unable to do in the US.
  • Along those lines, there would be "legal incentives" for ISPs to go above and beyond that in helping copyright holders.
  • Forget privacy. ISPs would be required to identify users on request, going well beyond existing law.
  • Expand what is considered patentable, going in the opposite direction of what's needed. Most troubling, it would allow patents on inventions even if the inventions do "not result in the enhancement of the known efficacy of that product." This seems to go against the very purpose of patent law, but the USTR has already shown it couldn't care much less than actually obeying the Constitutional underpinnings of patents or copyright law.
  • Continues the troubling and problematic idea that patents must be assumed valid, even if they were only briefly reviewed.
  • A requirement to forbid third party opposition of patent applications. This is particularly ridiculous. Allowing third parties to oppose patent applications (as is allowed with trademarks) would certainly help prevent some really bad patent applications from getting through. How can the USTR justify not allowing such a basic concept of letting third parties point out bad patents before they're approved. Especially when you combine this with the "presumption of validity" in patents once granted, it looks like the USTR is trying to increase the rubber stamping of patent approvals.
It's basically a checklist of how to make both copyright and patent law even more anti-innovation. It's pretty much a travesty. No wonder the USTR didn't want this to get out. It's a joke, and they must have known that anyone who actually understands what this really means would laugh at this. That must be why the document is declared classified until four years after the TPP is agreed upon.
Declassify on: Four years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations.

* This document must be protected from unauthorized disclosure, but may be mailed or transmitted over unclassified e-mail or fax, discussed over unsecured phone lines, and stored on unclassified computer systems. It must be stored in a locked or secured building, room, or container.
Oh yeah, as for things like consumer protections or safeguards for competition? KEI correctly summarizes that they are "weak, meak or missing." That's because this document isn't about enabling competition, innovation or consumer benefit. It's about helping out a few legacy companies who don't want to compete, and who have plenty of job openings ready for the folks involved in these negotiations down the road.


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