[A2k] IUST: TPP Outcome On ISP Liability Allows Alternatives To Notice-And-Takedown

Peter Maybarduk pmaybarduk at citizen.org
Fri Aug 14 10:45:26 PDT 2015

Inside U.S. Trade - 08/14/2015
TPP Outcome On ISP Liability Allows Alternatives To Notice-And-Takedown
Posted: August 13, 2015

Trans-Pacific Partnership (TPP) countries meeting in Maui last month reached an agreement in principle on provisions in the intellectual property (IP) chapter aimed at combating online piracy that allow Canada, Chile and Japan to maintain their current systems instead of adopting a U.S.-style "notice-and-takedown" regime, according to a Chilean digital rights advocate briefed on the outcome.

But the understanding worked out in Maui would require other TPP countries such as Brunei, Malaysia and Vietnam that do not currently have systems for combating online piracy to put them in place, Pablo Viollier, public policy officer for the Chilean policy group Derechos Digitales, said in an Aug. 12 interview with Inside U.S. Trade.

The agreement in principle represents a concession for the U.S., which had sought to impose blanket requirements for all TPP countries to adopt the notice-and-takedown system for addressing online piracy enshrined in U.S. law. That system allows ISPs to be shielded from liability if they immediately remove content from their websites upon receiving a complaint alleging that the content infringes on a copyright.

But Canada, Japan and Chile all have different ISP liability systems and had fought to ensure that they would not have to make changes to comply with a TPP deal. The Chilean system, for instance, only requires ISPs to remove content once a court has found that it is in fact infringing. Canada had sought its own exception as early as last October (Inside U.S. Trade, Oct. 24, 2014).

A May 11 draft of the TPP IP chapter leaked last week by Knowledge Ecology International shows that the U.S. had already yielded to those demands for Canada and Japan.

The IP chapter's addendum on ISP liability contains an annex proposed by the U.S. and Canada that sources said would effectively "grandfather" Canada's current notice-and-notice system. That regime only requires ISPs to forward notices of alleged copyright infringement to the user that uploaded that content rather than immediately remove the content in question.

The annex does not specifically mention Canada but lays out a series of criteria that are met by Canada's notice-and-notice system. It states that any party meeting those criteria on the date of entry into force of the TPP agreement would be exempt from the notice-and-takedown requirement.

Similarly, paragraph 3 in the addendum -- which lays out the requirements ISPs must meet to be granted safe harbor from liability -- contains a footnote that would allow Japan to maintain its current system, sources said. The footnote, which does not specifically reference Japan, lays out an alternative way that a TPP party can comply with paragraph 3.

Sources said this alternative framework is essentially a description of Japan's ISP liability system. Japan's system requires ISPs to remove content that is allegedly infringing a copyright if the ISP has good reason to believe the content infringes on a copyright, or if a user does not respond within seven days to a notice forwarded to them by the ISP alleging infringement. If the user does respond to the notice, a stakeholder group consisting of representatives from rights holders and ISPs will determine if the content should be removed.

Australia, Singapore and Peru have already implemented notice-and-takedown systems similar to the U.S. as required in their bilateral FTAs with the U.S., sources said.

But they said Brunei, Malaysia, Mexico, New Zealand and Vietnam do not currently have ISP liability regimes and would therefore have to implement the U.S. or Japanese systems to comply with the TPP text. These countries could also develop a notice-and-notice system -- like Canada's -- but would have to implement that system before TPP enters into force in order to comply with the grandfathering provision, they noted.

One IP expert said Vietnam appears to have an interest in developing a system that would fall under the carveout provided for Japan because it has proposed changes to Japan's footnote.

The footnote carving out Japan's system allows for ISPs to be free from liability if a stakeholder organization without undue delay verifies the validity of each notice alleging copyright infringement. That organization would consist of representatives from ISPs, rights holders and be "established with government involvement."

Vietnam has proposed language adding that a "competent authority or authorized organization" could also serve in place of a stakeholder organization as a part of this system.

Chile maintains its ISP liability system despite the fact that its bilateral free trade agreement with theUnited States requires notice-and-takedown, with the argument that the FTA language is broad enough to also allow for judicial intervention.

Viollier said that Derechos Digitales did not want Chile's ISP system to undergo any changes due to TPP and that, as it stands, the agreement in principle is acceptable to his group.

"Our view of the issue is that in the TPP, we only have to lose, nothing to gain," Viollier said. "We are happy with the ISP proposal we were told about, but its only [an agreement in principle]."

Viollier said the Chilean government has not specified how the TPP text would allow Chile to maintain its system. This could be done through a footnote explicitly stating that the TPP obligations on ISP liability could be met through a system that requires judicial intervention, he said. The leaked IP text shows that Chile and Vietnam have proposed such a footnote.

Alternatively, Chile could secure a commitment from the U.S. that the ISP liability provisions in the bilateral FTA would prevail over the TPP rules, essentially maintaining the status quo without resolving the dispute over whether Chile has complied with the FTA.

Australia has taken the opposite position, proposing a footnote stating that the TPP provisions on ISP liability should override those contained in its bilateral FTA with the United States (Inside U.S. Trade, July 31). However, that footnote does not appear in the May 11 text.

U.S. business groups have opposed Australia's footnote, arguing that it runs counter to the general principle conveyed to them by U.S. negotiators that if TPP and an existing FTA contain language on the same topic, the "stronger" of the two provisions would prevail.

One source following the IP talks said that negotiations on what provisions would prevail between TPP and existing FTAs are happening outside of the IP discussions and are being handled by the countries' legal teams.

U.S. rights holders have generally sought notice and takedown provisions in FTAs because it allows them to protect a greater amount of content as ISPs must remove content immediately before determining whether a notice of infringement of valid. Digital rights advocates have opposed these provisions in favor of Canada's notice and notice system. -- Brett Fortnam


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