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WIkileaks Revelations Confirms the Worst: US Negotiators Treat Internet Freedom Like a Bargaining Chip

So long, free and open Internet if the Trans Pacific Partnership agreement goes through as planned.

After years of secret trade negotiations over the future of intellectual property rights (and limits on those rights), the public gets a chance to looks at the results. For those of us who care about free speech and a balanced intellectual property system that encourages innovation, creativity, and access to knowledge, it’s not a pretty picture.

On Thursday, Wikileaks  published a complete draft of the Trans-Pacific Partnership (TPP) agreement’s chapter on “intellectual property rights.” The leaked text, from August 2013, confirms long-standing suspicions about the harm the agreement could do to users’ rights and a free and open Internet. From locking in excessive copyright term limits to further entrenching failed policies that give legal teeth to  Digital Rights Management (DRM) tools, the TPP text we’ve now seen reflects a terrible but unsurprising truth: an agreement negotiated in near-total secrecy, including corporations but excluding the public, comes out as an anti-user wish list of industry-friendly policies.

Despite the Obama administration’s top U.S. negotiators’ fast approaching their self-imposed 2013 deadline to complete the agreement, this week's leak is the public’s first look at the sprawling text since a  February 2011 leak [pdf] of the same chapter and a  July 2012 leak of an individual section. And even as the public has been completely shut out, the U.S. Trade Representative has lobbied for wider latitude to negotiate and for “fast-track authority” to bypass Congressional review.

The document Wikileaks has published contains nearly 100 pages of bracketed text—meaning it includes annotated sections that are proposed and opposed by the negotiating countries. The text is not final, but the story it tells so far is unmistakable: United States negotiators (with occasional help from others) repeatedly pushing for restrictive policies, and facing only limited opposition, coming from countries like Chile, Canada, New Zealand, and Malaysia.

Copyright Terms

The leaked chapter features  proposals for setting a new “floor” for copyright duration, ranging from the already problematic U.S. term of life of the author plus 70 years to an incredible life of the author plus 100 years, proposed by Mexico. Such bloated term lengths benefit only a vanishingly small portion of available works, and  impoverish the public domain of our collective history. The U.S. is also pushing for countries to embrace terms lengths of 95 years for corporate and 120 years for unpublished works.

Extending term lengths in the U.S. was already a bad idea. The U.S. Trade Rep shouldn’t be compounding it by forcing other countries to follow suit. Countries around the world that have shorter term lengths than the U.S. celebrate the arrival each year of new works into the public domain, and the economic activity that can accompany them. Since the 1998 passage of the Sonny Bono Copyright Term Extension Act, however, the U.S. will see no new published works enter the public domain until 2019. The proposal in TPP would export that sort of restriction to all the countries that join it.

These expansive terms have also exacerbated the widely recognized problem of “ orphan works” also known as “hostage works.” These are works where the rightsholder can’t be identified or located and, therefore, folks are afraid to use them, publish them online, etc, lest the rightsholder appear at last and file a lawsuit. As a result, millions of works effectively disappear from the cultural commons until their copyright terms at long last expire. Earlier this year, the U.S. Register of Copyrights advised  a reduction or limitation in term length as a possible solution. Crystallizing U.S. term lengths in international agreements would frustrate efforts to enact such reasonable policies. This is a classic example of  policy laundering, whereby corporate interests use secretive international forums to trump the democratic process at the national level.

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