iiTPP: How Trade Negotiations Are Running Around Australian Courts

Image of soccer revelers, dressed in uniforms and with face paint that show American flags and colours

Wikileaks has leaked a draft of the Trans Pacific Partnership or TPP.  If you're not sure of what either of those things are, don't worry, I'll explain.

Wikileaks is a website where people can safely and securely expose secrets, in particular secretive evidence of wrongdoing.  It's quite easy and simple, you just upload evidence of a widespread government surveillance program or a trade agreement being negotiated between countries and then hop into a chat channel and alert someone that runs the site that you have, and they publicise it to the world.

The TPP is an example of that latter activity.  Participants in the negotiations are trying to figure out the terms under which they'll trade to each other.  In particular, countries are setting the expectations the have of each other in return for them continuing to trade.  Want to sell apples to Mexico?  Well Mexico might have some rules about what they'd like to see done in order to protect Mexican industries before they'll agree to buy apples.  So what's the controversy?

The negotiations are being deliberately conducted entirely in secret.  If and when the agreement is finalised, the countries participating will enact laws to ratify it under their newly agreed-to obligation to do so.  The Australian Department of Foreign Affairs and Trade or DFAT, will come back having volunteered to make changes to Australian laws that weren't voted for in an Australian election, in fact weren't even proposed by Australians.  We'll have no idea what those laws are until the discussions are complete and we've undertaken to change them already. This is of some concern in a range of areas.

Where the TPP has ramifications that Any Any is interested in, is copyright. The US entertainment industries in Hollywood and recording studios is a multi gajillion dollar industry with a looming problem.  Despite the amount of people employed by Tinsel Town and record labels and despite how much money sloshes around between them, the primary products of the media and entertainment industries have a design fault; it's possible to copy and share them at practically zero cost. You can't create a zero-cost duplicate of your car, house or phone, but if you have a recording of Rhianna singing or a cinematic depiction of a fish called Nemo who's lost, it's basically effortless and free to create another recording of it and give it to your friend.

To protect its media and entertainment industries the US has pursued about 15 years of regulatory reform making copyright infringement illegal and restricting what can be done with copyrighted material, circumscribing its use as a base for other creative works.  In the US most huge technology companies have processes in place to handle accusations of copyright infringement to yank infringing material off the web ("This YouTube Video Has Been Removed Due To a Claim By ViaCorp").  Big hitting lawsuits have been fought, won and lost.  Internet Service Providers fight a running battle to avoid being implicated in the behaviour of their customers where it may fall afoul of the director's chair.

Australia by contrast has no Hollywood and no recording industry association that is quite so litigious. We produce movies and music sure, but it isn't the protected slice of the economy here that it is there. As a result our copyright laws are quite a measure less hysterical. There is no criminal offence in Australia for downloading movies or music, for the police to give you stainless steal bracelets you have to be commercially infringing, advertising infringements or doing any of a range of other more commercially focused activities.  A recent high court finding absolved ISP iiNet of responsibility for its users' copyright infringement despite the earnest attempts of a posse of rights holders to have them held accountable.

From the leaked text of the agreement;

CL/BN/NZ/MY/VN/CA/SG/MX propose; AU/US oppose: 1. Each Party shall limit the liability of, or the availability of remedies against, internet service providers when acting as intermediaries, for infringement of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services.

So Chile, Brunei Darussalam, New Zealand, Malaysia, Vietnam, Canada, Singapore and Mexico would like limitations on exposure to legal attacks on ISPs from copyright holders.  Seems fair, we don't hold power companies responsible for people who run hothouse lamps to grow marijuana.  Who's in opposition?

Just the USA and ourselves.

Despite a high court decision applauded by the Internet industry in Australia which confirmed that ISPs can't be held liable for the bad behaviour of their customers any more than they can be praised for people who donate to charity using their Internet connection, Australia is siding with the US in a multilateral, secretly negotiated trade agreement and advocating that ISPs shouldn't be protected from being sued.

Our involvement has been noted in the Electronic Frontiers Foundation's commentary here.

By hook or by crook, a fair judicial process or not, Hollywood wants its way with Australian ISPs.



Image: David Wilson