The Trans-Pacific Partnership, or TPP, is a major international free trade agreement that’s been in the works for a few years now. Unfortunately, it’s been negotiated in nearly complete secrecy from the public with only small and occasional leaks to let us know what it would do. That is, until today.
Earlier today, WikiLeaks posted a leaked text of the complete negotiated draft of the TPP’s Intellectual Property Rights Chapter. This is a fascinating leak. It confirms the fears that many of us have had that the TPP could be used to create even more draconian intellectual property regimes and even provides a look into exactly which countries support, propose, and oppose particular terms. As someone with an intellectual as well as vested interest in copyright, trademarks, and patents, I had to see what exactly the draft included. The answer: a lot.
Here’s a quick, non-legalese breakdown of what changes the TPP would make to existing US intellectual property law!
To start, there would be more protection for geographical indications, which are rights to names based on location (like how sparkling wine is only “champagne” if it’s from Champagne France). While the international community has a long history of protecting these rights, the US hasn’t been quite as interested. In fact we only have a few geographical indicators (like Florida oranges and Idaho potatoes), and even those are traditional trademarks registered by those respective states. But while we may not care much about this, under TPP we’d be forced to protect geographical indications more seriously.
Perhaps a more serious change is to patent law. The TPP provides for a significant increase in the kinds of things that can be patented, including plants, animals, biological processes, video game rules, diagrams and methods of mental processes, mathematical formulas by themselves, business plans, software by itself, artwork, books, and more. US law already allows for at least a limited protection of some of these, like granting software and business patents under certain circumstances. But neither the US nor anyone else protects the rest.
Some of that language is pretty scary on its face. What are “diagrams, plans, rules and methods for carrying out mental processes?” Why are we patenting things that are already protected by copyright like art and written works?
But as someone who plays and commentates games and represents clients who develop and use video games, I’m worried about patenting rules in games. Patents aren’t new in video games; there have been patents on certain processes in games for many years. But patenting rules themselves is a different story. Could a developer patent the rules that form the basis of most fighting games, or most first person shooters, or many RPGs? If so, that developer would have effectively gained a monopoly over an entire genre, and that isn’t good for gamers, other developers, or really anyone except that developer itself.
On top of newly patentable subject matter, the US also wants standards for granting patents to be relaxed in many countries. American law already allows for slightly easier standards, requiring only utility rather than the European standard of industrial applicability. In the TPP, the US proposes forcing that US utility standard on all the signatory countries. The TPP would also effectively lengthen the term of patent protection by not counting the granting process, which can sometimes take years, toward the total patent term. Patented items can even be re-patented after their initial expiration in circumstances where the items are claimed to have new uses.
To be fair, the TPP does allow a country to refuse to allow patents to be exploited (aka used) under certain circumstances, including dire public health situations and questions of local morality. But, as the TPP states, no country has refuse to allow a patent’s use “merely because the exploitation is prohibited by their law.”
The TPP creates takes a heavy-handed approach to copyright law as well. Penalties for copyright infringement in many situations, including in broadcasts, retransmissions, and online streams, would be increased and further criminalized. Circumvention, use, and trade of technological protections like DRM, as well as other interactions with DRM, would be made even riskier as well. This was a major goal of the SOPA and PIPA legislative proposals that were defeated in part by a major public outcry last year.
And lastly, if the United States gets its way, internet service providers will be on the hook to some degree for copyright infringement engaged in by their users. ISPs will also be given legal incentives to work with copyright owners to deter infringement online. Since current American law creates safe harbors for ISPs and allows them to escape liability as long as they meet certain criteria, the US seems to be advocating against its own laws with this proposal.
The bottom line is that this draft text is prejudicial to users and citizens and a significant boon to major players in the patent and copyright industries. And keep in mind, this is only the Intellectual Property Chapter of the Trans-Pacific Partnership; other chapters address many more aspects of international trade and dispute resolution. If this chapter is any indication, the TPP could be a major problem in the future.