[A2k] Alberto Cerda: IP, Privacy and TPP negotiations

Manon Ress manon.ress at keionline.org
Sun Jun 19 16:48:25 PDT 2011


Right to Privacy in Trans-Pacific Partnership (TPP ) Negotiations

by alberto.cerda on 19. June 2011 - 11:00

The Office of the U.S. Trade Representative (USTR) has declared an
intention to have all its proposals on intellectual property
protections by the commencement of the next round of TPP talks in
Vietnam June 20-24, 2011. On a fast timetable, TPP negotiators have
already announced that they want to finalize TPP by the summit
meetings of the members of the Asia-Pacific Economic Cooperation on
November 8-13, 2011 in Hawaii. The TPP will impact health, access to
knowledge, and without the necessary safeguards, the right to privacy.

The right to privacy not only protects individual interest but social
interest. Freedom of speech, religious freedom, sexual choice, and
other rights and liberties are protected through the right to privacy.
However, historically it has been under attack, first by government,
then by the media, today also by intellectual property enforcement. In
fact, the TPP negotiations show to which extent, under the guise of
protecting intellectual property negotiators are willing to sacrifice
the right to privacy and, therefore, an essential element for
democratic societies.

TPP is an initiative promoted by the USTR to deepening free trade
agreements in the Pacific area. Currently, its negotiation includes
Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, and
Vietnam. Because of the secrecy in its negotiation, nothing of the TPP
is known, but the leaked chapter on intellectual property proposed by
the US. This chapter is particularly important for privacy, and it
usually is the chapter that raises more concerns among privacy
advocates, because it includes several measures that affect the right
of people to control the information about themselves.

There is not a similar level of protection for privacy among countries
involved in TPP negotiations. New Zealand and Peru are probably those
with stronger protection mechanisms; the former is being recognized as
a country that provide an adequate level of protection for privacy by
the highly protective European Union, while the latter just modified
its domestic law following EU standards. Australia, Chile, and
Malaysia may qualify as high-intermediate level of protection, while
the United States offers an intermediate one. Singapore does not have
any law on the matter, but instead voluntary codes of conduct that
would barely qualify as a low level of protection. Even more critical
may be the protection of privacy in those countries with a
questionable democratic commitment, such as Vietnam and Brunei.

But, how does TPP jeopardize the right to privacy? TPP affects the
protection of the right to privacy by enforcing intellectual property
in two ways. Indirectly, by increasing the scope of protection for
copyright holders (e.g., by granting an exclusive right to exportation
or extending the term of protection) and, therefore, increasing the
chances of enforcing the law with measures that undermine the right to
privacy (e.g., those that require identifying supposed online
infringing users). Directly, by requiring countries the implementation
into domestic law of measures that jeopardize the right to privacy.
This happens in at least three set of provisions of the TPP: those
related with technological protective measures (TPMs), those that
require ex officio enforcement, and those that regulate internet
service providers’ liability.

TPP goes beyond international instruments on copyright when proposing
norms on TPMs, which follow the path of the DMCA. The WIPO Internet
Treaties requires countries to provide adequate legal protection and
effective legal remedies against the circumvention of effective
technological measure. Instead, TPP requires countries to adopt
provisions against eluding those measures (anti-circumventing) and
against commercializing devices that allow that circumvention
(anti-trafficking), even for legitimate purposes. Moreover, TPP
requires criminal sanctions against eluding and commercializing, even
if no copyright infringement takes place.

Unlike in the ACTA negotiations, the TPP proposal includes some narrow
exceptions that allow circumventing a TPM; for instance, for the
purpose of identifying and deactivating a TPM’s capability that
affects the privacy of a user by carrying out undisclosed collection
or dissemination of personally identifying information reflecting the
online activities of a natural person. However, this exception is
limited to anti-circumventing provisions, but does not apply to
anti-trafficking provisions, which means that each user has to figure
out by himself how to identify and deactivate the mentioned
capability. In plain language, if a user is interested in protecting
his right to privacy, he needs to become a hacker in order to enjoy
the exception. As a result, the exception for protecting the right to
privacy is useless.

TPP requires countries to confer to both custom and criminal
prosecution authorities power to act ex-officio in order to enforce
intellectual property. According to the TPP proposal, custom
authorities should enforce intellectual property not only respect to
imported and exported goods suspected of infringing trademark or
copyright, but also respect to “in-transit” goods. Meanwhile, criminal
prosecution authorities should enforce criminal law without need for a
formal complaint by right holders.

Provisions on ex-officio enforcement raise concern related to the
public cost of enforcing private interest, and also because of its
potential use by governments for political persecution, particularly
in countries with precarious sense of democracy and human right
compliance. In recent months, authorities of Russia and Swaziland have
used the ex-officio actions to silence critical speech of
environmentalists and political dissidence. Unfortunately, TPP does
not adopt any measure to prevent that unintended use of ex-officio

The TPP proposal requires regulating Internet service providers’
liability for any potential online infringement of intellectual
property. It does not require ISPs monitoring of users, but it does
not prohibit it; instead, TPP requires cooperation between ISPs and
right holders. Cooperation between ISPs and right holders without
regards of users’ rights has been the way to implement the graduated
response (also known as three strikes policy) in countries like United
Kingdom and Ireland. Unfortunately, TPP does not prevent that, under
cooperation between ISPs and right holders, the former ones monitor

Additionally, the TPP proposal requires implementing the disconnection
from the Internet of supposed infringers of intellectual property, the
adoption of expeditious mechanisms for notice and takedown of
supposedly infringing contents, and the identification of users by any
ISP providing access to the Internet. Those measures are not available
in all the TPP-negotiating countries (e.g., Peru does not have any
copyright provision on ISP into its domestic law). Other countries
have made an effort to harmonize those measures with an adequate
protection for the right to privacy (e.g., Australia and Chile require
judicial control in order to take down content and identify users).
Instead, in the U.S. law, which is the base for the TPP proposal,
those measures have been criticized because they jeopardize the right
to privacy, among other human rights.

It may be recalled the fact that, during ACTA negotiations, presumably
because of the pressure of data privacy authorities of the European
Union, ACTA gave up some of those controversial measures (e.g., the
graduated response) and included some safeguards for privacy.
Unfortunately, none of the privacy safeguards adopted in ACTA seem
reflected in the TPP proposal.

Obviously, data privacy authorities of negotiating countries should
analyze the consistency of the TPP IP chapter proposal with existing
domestic law on privacy, particularly in countries with stronger
protection, such as Australia, New Zealand, Malaysia, Chile, and Peru.
Intellectual property enforcement may require processing personal
information, but it does not mean that the right to privacy must be if
not abolished nullify. At this point, unfortunately, the TPP proposal
jeopardizes the social interest involved in protecting privacy and
other fundamental rights, by omitting any consideration to them in its

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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