Copyright, privacy and democracy v. TPPA

In my mind the TPPA chiefly concerns the three supra-national issues of copyright, privacy and democracy. I see the TPPA as a threat to the freedom that the internet allows, for inventions like the World Wide Web.

I have been aware of TPP developments since around mid 2010. Using the internet I started informing other people sometime in early 2012. This was just after the blackout defeat of the Stop Online Piracy Act, in the US. Those years also saw dramatic discussion over the Anti-Counterfeiting Trade Agreement, which failed in the EU. I have since waited patiently for my first chance to discuss the TPPA openly. This is only possible after the text has been declassified for some months. And I have been able to copy and interpret the details of the agreement which have started to trickle down, through the media and academia, to the public and to you, our representatives.

The internet allows us to trade copies of ideas with the rest of the world, that are permitted by technology and law. However the issues of what is permitted by technology and law, are being renegotiated as the TPPA is ratified. We need to interpret our country’s exceptions in the text, and implement them in our own law.[1] New Zealand hasn’t reviewed its copyright law since 2008, before the time when online services like Twitter and Facebook introduced many New Zealanders to new ideas. And to the sharing of everything with friends and family in open forums.

The real advantage of the internet is that it costs virtually nothing to reproduce copies of imaginary goods.[2] With the TPPA our copyright term is extended by 20 years, at significant costs to non-profit libraries, museums, archives, educational institutions, and non-commercial public broadcasters. For instance archivists will be that much less certain of what actually is, or is not in the Public Domain. I.e. what should legally be accessible by anyone online. This windfall of 20 extra years of sales, with no extra creative output will largely go to US recording companies and movie studios unless consumers react against it.[3]

In other submissions I’ve heard Kiwi’s were also concerned about the clauses in the investment chapter and elsewhere protecting the government’s right to regulate. I cannot see how there can be public confidence in these clauses, while the evidence supporting their effectiveness remains confidential. At the least I would hope for an appeal mechanism like that in the EU-Canada FTA. I would be much happier if we ended up with a proper supra-national court system like that proposed for the Transatlantic Trade and Investment Partnership.

We should ask ourselves not “What is the TPPA?” but “What shall we make the TPPA become?” Problematically the TPPA locks in New Zealand’s electable policy for facing future challenges, just like Technological Protection Measures (TPMs) are designed to lock in your ability to understand new and difficult problems. TPMs prevent you from using a digital product in ways the producer did not intend. For instance, they might prevent you from making copies of your DVDs, in the privacy of your own home, whether or not you intend on using those copies for a legitimate purpose.

The ease of copying information has been increasing rapidly since the digital revolution began at least 30 years ago. Today the value of weightless exports is starting to soar, and enticing copies of digital products can often be offered for free.[4] To profit from this global market change, our nation must adapt to the experience of electronic commerce in online services. Meanwhile we also need to retain our sovereignty to be able to protect private data carried by international data flows. However as we found out last election our mature democratic electorate is largely still digitally illiterate.

Young people these days need to graduate beyond tinkering with technology, they must be able to repeatedly copy boxes of stuff. Be it “games, streaming media, e-books, or indeed any software or other digital product”, without being antagonistically encumbered by TPMs.[5] They can also benefit from access to source code text details to identify risks and opportunities. Innovation requires trying things that were not thought of before. Culture needs to evolve as well as being remembered and passed on. If we let ourselves be locked into the 20th Century commerce models that are at odds with 21st Century technology, our economies will simply become obese and unhealthy.

Apple iTunes, Spotifiy, and Soundcloud are healthy examples of sustainable businesses, selling attractive online services to artists and audiences. Rather than the old game of monopolising the distribution of worthless copies of imaginary goods. You can still buy CDs, but you can’t find a record store in small-town NZ. The Aro Street Video Shop in Wellington likewise cannot afford a bricks and mortar store, however YouTube subscribers, Netflix members and Vimeo followers are beginning to fill digital convention centres.[6]

The three main points I would like to reiterate are that; 1. we need to interpret New Zealand’s copyright exceptions in the TPPA text, and implement them in our own law; 2. TPMs should not encumber you in the privacy of your own home from copying imaginary goods for legitimate purposes; 3. our democracy demands that the public be informed with verifiable evidence providing confidence in the government’s right to regulate.[7]

References

  1. Lim, Pheh-Hoon, “Intellectual Property And The TPPA. Does It Affect Us?”, February 3, 2016 <http://briefingpapers.co.nz/2016/02/intellectual-property-and-the-tppa-does-it-affect-us/>
  2. Refering to Article 18.68 on TPMs, “games, streaming media, e-books, or indeed any software or other digital product” are the imaginary goods listed on page 12 of the expert, peer reviewed research paper “TPPA: Intellectual Property and Information Technology”, authored by James Ting-Edwards, Melanie Johnson, Judge David Harvey, Debbie Monahan, Kate McHaffie and Jo Shaw, uploaded February 2016 at <https://tpplegal.files.wordpress.com/2015/12/tpp-ip-it.pdf>
  3. We need to upgrade ActionStation if we’re going to stop TPPA <https://www.pledgeme.co.nz/projects/4532-help-actionstation-launch-a-new-digital-platform-where-you-can-start-and-win-your-own-campaigns>
  4. “Creative Industries including Games Add $3.848b to NZ Economy.”, New Zealand Game Developers Association, October 1, 2015 <http://nzgda.com/news/creative-industries-including-games-add-3-848b-to-nz-economy/>
  5. For examples see Postigo, Hector, “The Digital Rights Movement: The Role of Technology in Subverting Digital Copyright”, Massachusetts Institute of Technology, 2012. Hardcover <http://www.fishpond.co.nz/Books/Digital-Rights-Movement-Hector-Postigo/9780262017954>
  6. A CC BY-SA copy of My TPPA oral submission is downloadable from <https://medium.com/@CatsToGo/a6f26db09fce>
  7. Global Affairs Canada, “Eli Lilly and Company v. Government of Canada”, Hearing pending May 30 — June 9, 2016. <http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/eli.aspx?lang=eng>
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