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The Latest US Export: Bad Copyright Laws

·Contributing Editor

(Rob Pegoraro/Yahoo Tech)

Should you, a law-abiding American user of phones, tablets, laptops and other digital gadgets, worry about a complex international trade-liberalization agreement called the “Trans-Pacific Partnership”?

That all depends on how you feel about American law treats things like copyrights, patents, and other intellectual property, not to mention conducting major trade pact negotiations in secret. 

No, you shouldn’t, say backers of the deal, because the TPP won’t change any American laws governing your digital lives. Instead, they argue it will lower tariffs and other barriers across the Pacific while enforcing environmental and labor standards. As a fact sheet put out by the Office of the U.S. Trade Representative correctly states: “Nothing in TPP will go beyond existing U.S. law.”

Yes, you should, say opponents of the agreement—for almost the exact same reason. The thing is, they’re both correct. 

The best and worst of IP laws

The TPP talks only date to 2008, but the underlying argument spans decades: Do we give too much power to the people and organizations that hold copyrights, patents and other intellectual property (IP), and not enough to those of us who use their creations?

If you think current U.S. IP law is great, then you should be fine with a deal negotiated between us and Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam that commits all signatories to those provisions.

But what if you don’t? What if you can’t endorse laws that allow patent trolls to extort millions from deep-pocketed corporations, compel Web radio stations to pay infinitely more to musicians than anybody on the FM dial, or shut off a TV startup for kinda-sorta looking like a cable company, even though it didn’t work like one?

A binding trade agreement with most of the Pacific Rim will essentially cement those laws in place forever. If you don’t like that idea —or if you simply don’t want other countries to follow our example—then you might not like the TPP.

Fairly judging the TPP has been difficult because, like other trade deals, it has been negotiated on a confidential basis. But last week, a Washington-based non-profit advocacy group called Knowledge Ecology International posted a leaked copy of TPP’s intellectual-property provisions as they stood on May 11.

Exporting our exceptionalism

You shouldn’t consider those documents final—they predate a negotiating round that ended July 31—but they should offer reasonable guidance on where things stand.

(The United States Trade Representative press office did not answer two e-mails and a phone call asking about the validity of the leaked text.)

As people have been complaining about for years, this version of the TPP text still requires member countries to extend copyright terms to match or exceed the ever-expanding U.S. standard: the life of the author plus 70 years, or 95 or 120 years for corporate-owned works. Existing copyright treaties, meanwhile, only require a 50-year minimum

Walt Disney may have passed in 1966, but Disney has locked up Mickey and Minnie until 2023 — so far, at least. 

That’s an easy spear to throw at TPP, but it’s also a dull one if you’re in front of a keyboard or touchscreen in the U.S. Why get worked up over other countries getting stuck with entertainment conglomerates claiming ownership of movie characters, songs, and books for a century into the future?

Ending our evolution

One clause in the TPP text, however, appears to foreclose on attempts to fix a largely American-made copyright problem: “orphan works” — those whose owners can’t be found.

The U.S. Copyright Office issued its latest study of the orphan works problem in June, calling it “widespread and significant.” Under current U.S. law, the fact that nobody can locate the author of an out-of-print book you want to put back into circulation is no defense—if that author surfaces, you can get fined as if you’d ignored in-person pleas to make a deal.

This inevitably wears holes in our creative heritage. And that’s contrary to the reason for copyrights to exist; as the Constitution says, they (and patents) function to “promote the Progress of Science and useful Arts.” Securing the income of creative types, including reclusive or dead ones, is a side effect.

The TPP draft text’s chapter on enforcement, however, acts as if the entire orphan-works problem had never been born. Instead, it instructs countries to consider “any legitimate measures of value the right holder submits” when assessing damages for infringement. 

That leaves no room for special cases like a rights holder appearing to go off the map. It does, however, allow for out-of-whack penalties like those in lawsuits over sharing music online that ended with hundreds of thousands of dollars in damages assessed to the file swappers.

That pick-a-number punishment seems fine in the TPP universe. It also fits with other attempts by the U.S. in these talks to limit provisions backed by other countries to counter abuse of patents and copyrights.

It’s “the wish list of one set of the equation,” summarized KEI director James Love Monday. He noted that Congress will never finish trying to deal with the orphan-works problem if a multinational trade deal stands in the way: “If you put it in the TPP, they will never change it.”

Have we learning anything from this?

Knowing Congress’s dismal lack of productivity at reforming tech policy—I’m still amazed that it voted to curb the National Security Agency’s bulk surveillance—you can argue that the TPP’s overall economic benefits outweigh the downsides. Why fret over blocking changes to IP law that the U.S. is already allergic to?

That’s the conclusion of Tyler Cowen, a George Mason University economist who studies development and trade. “I would say most or all of the bad stuff is cemented in already,” he e-mailed on Sunday. “So the marginal impact of TPP in this regard is negligible.”

But it’s still sad to see how little the government seems to have learned from the failure of the Anti-Counterfeiting Trade Agreement. It too was negotiated in secret but took a much more extreme stance in favor of Big Copyright.

Five years later, the leaked TPP text suggests U.S. trade negotiators still can’t grasp that our unbalanced intellectual-property laws are not exactly our finest export. 

Email Rob at rob@robpegoraro.com; follow him on Twitter at @robpegoraro.