SOPA, PIPA, ACTA - the four-letter acronyms of the various laws and trade agreements aimed at cracking down on internet piracy have been swirling about the internet lately.
More often than not these regulations have been crafted behind closed doors, leading to discussions about each that are too murky and confusing by half. Hyperbole abounds, often magnifying or distorting the actual threats these laws pose, while the architects of these laws consistently play down their impact on free speech and the economy.
Even overly-hyped reports of the danger of these laws to free speech and the threat of censorship can be useful in shining more light on the regulations themselves and in sparking conversation and debate.
If we don't have a conversation - even a heated one - how can we properly assess what these new rules would do to the future of the internet, social media, and our freedom of speech online?
The Global Economy Heads East
Add to these three yet another trade agreement, TPP, or the Trans-Pacific Partnership.
Nob Akimoto has an excellent piece detailing the pros and cons of the agreement, which marks a serious global economic shift from the Atlantic region to the Pacific, as Asia's role in the world economy gains momentum. In many ways, the agreement represents a huge step forward in normalizing trade between America and Asia.
"While most FTAs carve out exceptions, TPP is a comprehensive agreement aimed at all market sectors and products," Akimoto writes. "If TPP succeeds in creating a trans-Pacific Agreement that can bridge the Asian and American regional differences by a raising standards of market access, future expansion of this free trade area would become easier and more attractive."
"If the current negotiations over TPP prove fruitful, this sort of high-standards open access multilateral framework will prove a useful tool for addressing issues other than trade promotion," he continues.
The Devil In The Details
So far so good. Unfortunately, TPP goes much further than simply reducing trade barriers and trade liberalization. Like many other free trade agreements, Akimoto notes, the devil is in the details. The TPP's devil is in the IP Protection Standards section of TPP.
"While the WTO usually enforces the Trade-Related Aspects of Intellectual Property Rights (TRIPS), the US tacks on IP protection provisions that are consistent with its own copyright protections in the form of an architecture known as TRIPS-Plus," Akimoto writes. "Provisions in TRIPS-Plus agreements include longer copyright terms, data exclusivity on medical testing data, bans on parallel importation (essentially importing cheaper versions of patented items from another country), and specifying what precisely can be patented.
"In negotiating TPP, the USTR has been an aggressive advocate of “up-harmonizing” the IP protection rules in TPP by requiring copyright and patent terms that adhere to US standards. In addition the USTR has pushed for stronger copyright infringement mechanisms and rules to prohibit parallel imports of copyrighted works. This system prevents New Zealand from importing cheaper DVDs of a movie from Singapore rather than buying them from the US. As a result the provisions for IP Rights in TPP resemble an importation of American domestic law, with a particularly strong emphasis on pharmaceutical and multi-media prohibitions. The internet safe haven provisions for example may as well be lifted straight from DMCA.
"This is clearly a problem," Akimoto continues. "The attempt to formalize the backward, draconian US copyright regime puts at risk countries that have developed their own new intellectual property standards. Chile and New Zealand for example have tried to create more progressive and open systems, which would fall under the weight of a fines system. Not only does this make TPP a substantially less attractive agreement for many countries, but the insistence on pushing bans for parallel imports may create a negative impact on public health sectors."
IP Laws Need To Evolve Along With Our High-Tech Global Economy
Akimoto argues that the USTR should use TPP as a testing ground for a more flexible IP rights regime, rather than as an attempt to export the outdated US patent system to the rest of the world. Unfortunately, if we take the big picture into account, this is unlikely to happen.
Rather than enacting meaningful patent reform or attempting to update our copyright and IP laws to reflect the growth of the high-tech economy, the US government has followed its worst impulses, turning to the entertainment industry for guidance rather than thinking long-term.
If anything, these latest attempts to reform IP rules and internet regulations represent an even more draconian step on the part of the US government, both here and abroad.
Akimoto is right, of course, that we have a real opportunity to test and refine our outdated patent rules and to bring IP laws in line with the modern economy. Without more transparency in the rule-writing process, however, this is unlikely to happen.
The TPP has many redeeming factors, as Tim Ferguson points out, heralding "tremendous progress for nations such as Malaysia and, even more impressive, Vietnam. Along with the belatedly approved FTAs with Korea, Colombia and Panama, it stands to achieve major progress in exports (and imports) for a USA that has long trailed the world’s great trading nations in the share of its economy from abroad."
Hopefully the devils in the details are hammered out before the agreement is finalized. Keeping the "free" in free-trade-agreements is important and something that governments all too often fail to achieve.
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