Good Points on the TPP from the EFF

The Electronic Frontier Foundation has penned an excellent analysis of the IP provisions of the Trans-Pacific Partnership text that you can read in full here.

Something that I did not appreciate when I read the leaked language of the IP section was how the restrictions applied to users tend to be mandatory, while the rights given to them tend to be discretionary.  Which of course makes sense if you accept the contention that major content providers significantly influenced the (secret) negotiations the led to the TPP.  

Frankly, much of the IP language of the TPP tends to impose the regimes currently in place in the US, which is why it may be harder for me to be shocked to see them in this document.  At any rate, the EFF's analysis offers a fresh perspective on what the appropriate limits should be on both content owner rights and user rights.  Good reading.

Let's Take Our Time Before We Freak Out About the TPP

While I am not a big fan of the way the Trans-Pacific Partnership Agreement was negotiated or has been ballyhooed by the Obama administration, the fact remains that it is the text of the TPP that needs to be the focus of our attention going forward.

Wikileaks has just released a the IP Rights Chapter of the TPP, or at least the version that existed as of October 5, 2015. 

Based on the version released by Wikileaks, The Guardian article linked here says that the TPP will "give signatories the ability to curtail legal proceedings if the theft of information is 'detrimental to a party’s economic interests, international relations, or national defense or national security' – in other words, presumably, if a trial would cause the information to spread."

I'm not sure I agree. The text in question (Article Q.Q.H.8.3) says that "a Party (any of the countries who sign on to the TPP) may, where appropriate, limit the availability of such criminal procedures [to prosecute trade secret theft], or limit the level of penalties available, TO one or more of the following cases: . . . . (e) the acts are detrimental to a Party's economic interest, international relations, or national defense or national security."

Note the "TO," which I highlighted. This suggests that a country may limit its criminal prosecution of trade secret theft TO situations where the theft is detrimental to the country's economic interest.

The Guardian's interpretation effectively replaces the word "TO" with the word "IN." Doing so substantially changes the meaning of this section. If a country can "limit the availability of such criminal procedures . . . IN . . . one or more of the following cases," then the country can restrict application of existing laws in situations where "the acts are detrimental to a Party's economic interest" etc.

But I don't think that's what the provision is trying to say.

Certainly this is one area that could use some clarification before it's up for ratification.