TPP: U.S. May Accept Partners’ Own ISP Liability Frameworks

The Trans-Pacific Partnership (TPP) is a multinational trade agreement aimed at strengthening economic ties between the United States, Canada, New Zealand, Japan and eight other countries. The aim is to ease trade in goods and services, encourage investment, and forge understandings across a wide range of policy issues.

The TPP contains a chapter on intellectual property issues such as copyright, trademarks and patents. However, the developing agreement is highly secretive with drafts never being released to the public – officially at least. That all changed in 2013 when Wikileaks breached the agreement’s security cordon with the publishing of a draft relating to IP issues.

Since then there have been several leaks, including a notable one in October 2014, again courtesy of Wikileaks. Last month Politico obtained a more recent draft dated May 2015 but did not publish the full document. However, the Electronic Frontier Foundation now says it has been briefed on its contents.

The EFF reports that while the text on DRM circumvention and copyright term remain largely unchanged, progress appears to have been made in the area of intermediary liability. This relates to the immunity afforded to service providers in respect of copyright infringement claims, provided they adhere to a set of requirements establishing their ‘safe harbor’.

In this area the most famous framework is that outlined by the United States’ Digital Millennium Copyright Act (DMCA), whereby Internet companies such as ISPs and platform providers such as Google and YouTube respond to takedown requests from third parties to avoid being held liable for the infringements of others.

As outlined in last year’s leak, the TPP’s ISP liability section mimics the DMCA, which prompted concern that partners could be forced to impose tougher regimes than those already in place. However, according to the EFF there appears to be a softening of position which could allow countries to stick to existing frameworks.

“The latest leak suggests that the U.S. is now likely to accommodate at least some of these existing intermediary liability regimes, rather than forcing a carbon-copy of the failed DMCA on its TPP partners,” EFF Senior Global Policy Analyst Jeremy Malcolm writes.

“The text does enforce a more generalized model of limitation of liability for intermediaries for third party content, and imposes a range of conditions before they qualify for that protection.

“But those conditions are now broad enough to accommodate a Japanese-style system in which a self-regulatory authority, formed by intermediaries and rightsholders with government involvement, is required to verify notices of claimed infringement before they are acted on.”

Also of interest is the approach taken towards Canada, a country placed as one of the leading opponents of many of the U.S. proposals. As concern mounts that the TPP agreement could challenge the country’s recently revamped copyright law and its notice-and-notice (as opposed to notice-and-takedown) system, the EFF reports leeway in negotiations.

“Interestingly, Canada’s system is not accommodated within the main text, but in a separate annex. The annex would exempt a country (such as Canada, implicitly) from the requirement to have a notice-and-takedown system provided that it already has a system in place requiring intermediaries to pass on notices of alleged infringement to their users,” the EFF explains.

However, the wiggle room does come at a cost. Countries in this position would be expected to impose secondary liability on intermediaries of services that are “primarily” used to enable copyright infringement. Search engines would also be required to remove cached copies of infringing items after their removal.

While the EFF raises concerns over the above, other proposals in the draft are given a cautious welcome.

TPP partners are now required to provide penalties against parties who knowingly file false takedown notices, equally those who file false counter-notices. Content taken down by a takedown notice must also be restored if a valid counter-notice is received.

Intermediaries will also be relieved that a failure to satisfy safe harbor conditions won’t automatically make them liable for infringement. Neither will safe harbor be reliant on intermediaries proactively monitoring uploads.

In conclusion, however, the EFF sees few reasons for optimism, noting that other threats in the IP chapter mean that the case for the group to fight the TPP “has never been more compelling.”

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