Since 1998, digital works in the U.S. have been protected by law under the Digital Millennium Copyright Act (“DMCA”), a broad policy which aims to prohibit the unlawful dissemination of copyrighted material over the internet. Despite its purported benefits, it has frustrated both content owners and users alike. Owners, who claim that the law fails to adequately protect their work, and users, who believe the law encroaches on their freedom of expression. Now, however, it seems that these concerns are being underscored by a more ominous deal—the Trans-Pacific Partnership.
Congress intended the DMCA to serve an “anti-circumvention” purpose, by which infringers would be prevented from intentionally violating anti-piracy protections. The impact, however, was far more broad, encompassing a wide range of legal activity (YouTube error messages, for example, have become a little too common). Critics have compiled a laundry list of faults with the DMCA, ranging from a chill effect on free speech to a general hindrance of scientific progress and innovation. See Unintended Consequences: Fifteen Years under the DMCA, Electronic Frontier Foundation (Mar. 2013), archived at http://perma.cc/7S6V-5CRK (setting out the side-effects of various DMCA provisions). They claim it discourages “fair use” of content (e.g., backing up your own DVDs), hinders competition (e.g., third-party software and products), and interferes with the legitimate work of journalists, students, and other users. Not only this, but the very function the DMCA serves has performed below par, as piracy persists and infringers continue to find loopholes in the law. In other words, no one is happy.
The Trans-Pacific Partnership (“TPP”) was ratified in New Zealand on February 4 and it is expected to go into effect in April. It is a comprehensive deal between twelve pacific region nations, and is designed to do away with various tariffs and trade barriers. Proponents hope the deal will increase U.S. influence on trade by writing new rules to encourage entrepreneurship and get “Made in America” on more products. However, the agreement has an intellectual property chapter, which places restrictions on online content distribution in similar fashion to the DMCA—and with a stronger bite. See Q&A: The Trans-Pacific Partnership, Human Rights Watch (Jan. 12, 2016), archived at perma.cc/8YXD-8KNK (analyzing the details and implications of the TPP and related DMCA provisions). For example, the TPP has excluded some of the exceptions and limitations that even the DMCA permitted. While some wiggle room was afforded under the DMCA for fair use, the TPP includes a more stringent standard. Additionally, critics have pointed out that the deal includes stronger copyright provisions, which will extend owners’ rights by decades following their deaths. Many of the more vague provisions are causing concern for the rights of journalists, students, and other parties with legitimate interests. For example, some suspect that corporate stakeholders will benefit the most from the deal, in part due to provisions that may deter whistleblowers from divulging sensitive information. Not only that, but the TPP imposes stronger criminal penalties on infringers—even those who are not motivated by commercial interests.
The TPP raises a number of issues that should have many people concerned. Those who have identified the DMCA’s failures will logically point to the similarities with the TPP, without much hope for change. With freedom of expression at stake, critics will argue that the deal is geared to suppress users’ rights, innovation, and other legitimate uses of owners’ content. Moreover, those who subscribe to a Realist political philosophy will find themselves concerned with the added influence the TPP affords to international governance, along with the weakened sovereignty of the signatory nations.
A less popular topic on the 2016 campaign trail, intellectual property rights, may continue to be an issue for our next president. Senate Majority Leader Mitch McConnell (R-KY) just recently attempted to block the TPP from reaching Congress before the 2016 elections. Republicans, who take a more Realist-based perspective on overarching government regulation, will likely put up a fight against what they are now calling “Obamatrade.” Even some democrats have opposed the deal, including Hillary Clinton, although some stakeholders speculate she may have a change of heart after November.
Any deal that subordinates U.S. law and rights of free expression to international oversight is likely to face scrutiny in the future. For both free speech advocates and intellectual property proponents alike, there is a lot at stake under the Trans-Pacific Partnership.
Blogger Bio: Chris Gavrielidis is a Staff Member on the Journal of High Technology Law and a second year student at Suffolk Law. He is an advocate for small government and a strong believer in individual liberties.