Intellectual property

Revealed: The secret negotiations for Internet freedom

November 15, 2013: 6:06 PM ET

A draft document published by Wikileaks reveals ongoing negotiations over intellectual property enforcement measures in the proposed Trans-Pacific Partnership trade agreement.

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FORTUNE -- When citizens have input on intellectual-property laws, they tend to favor looser restrictions over tighter ones. That's what happened with the Stop Online Piracy Act and the Protect IP Act, which were both killed by U.S. Congress after a loud public outcry. That would explain why corporations with financial stakes in various intellectual property, abetted by governments, prefer to work in secret to get more restrictive policies enacted through international treaties.

This week, Wikileaks published a draft of one section of the proposed Trans-Pacific Partnership trade agreement -- the one that deals with intellectual property. It was published only to negotiators in August. At 96 pages and 30,000 words, the document "confirms the worst" fears of advocates for Internet freedom and looser copyright restrictions, according to the Electronic Frontier Foundation. "It's not a pretty picture."

Whether or not you agree with that sentiment depends on whether you're a copyright holder.

The proposal includes language for extending copyrights to the life of the author plus 100 years -- much longer than what is now U.S. law, which is life of the author plus 70 years. Critics of such lengthy terms note that copyright law exists to provide economic incentives to create, rather than ensure that revenues flow to copyright owners for decade after decade while restricting the public's use of created works.

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One notable area of pushback is on a highly controversial section of the proposed treaty that would put Internet service providers in a position to enforce copyright laws lest they be held liable. Canada and some other countries want individual countries to have flexibility as to how strict that liability should be. But the U.S. and Australia want what the EFF calls "draconian" measures that would force ISPs to filter and block Internet destinations that are alleged to traffic in pirated materials, and to enforce a "three-strikes" rule that boots customers who have been accused three times of illicitly downloading copyrighted materials.

The draft also includes new language regarding "temporary copies," an aspect of the talks that had been leaked earlier. Previous drafts of the treaty counted temporary copies as protected works, even though such copies are absolutely necessary for the basic functioning of the Internet. (For instance, when you watch a streamed video, a temporary file is created on your computer.) According to the draft, a large number of countries have now signed on to new language that would eliminate such restrictions. So far, the U.S. is not among them.

As the EFF states, the treaty is "an agreement negotiated in near-total secrecy, including corporations but excluding the public." The secrecy of the talks is similar to the secrecy surrounding trade talks across another ocean, the Anti-Counterfeiting Trade Agreement, or ACTA. Whether the TPP remains "an anti-user wish list of industry-friendly policies" will be known only when it is completed and made public for country-by-country ratification.

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