EFF warns new US-led Asia-Pac partnership could turn ISPs into ‘copyright cops’

Reuters file photo

If you think the new copyright law is already restrictive, wait until the Philippines joins another controversial multilateral free trade agreement, the Transpacific Pacific Partnership or TPP. Recent reports from abroad say that the Philippines is one of the countries keen to participate in the highly-secretive TPP negotiations.

According to the leaked negotiating text, the TPP could have a major impact on digital rights and access to life-saving medicines in developing countries. Considered as a priority in the trade agenda of the Obama administration, the TPP could further bolster the economic influence of the US in Asia Pacific, the home to about half of the world’s population.

In March, the 16th round of the TPP negotiations took place in neighboring Singapore, one of the 11 countries involve in the talks. Aside from Singapore, the other participating countries are Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, the United States and Vietnam.

In the area of digital rights, a number of lobby groups have already expressed their fears over the TPP negotiating text. The Electronic Frontier Foundation (EFF), a consumer rights advocate, said the intellectual property (IP) chapter in the TPP text could “ratchet up IP enforcement at the expense of digital rights.”

EFF has warned that the TPP could turn Internet service providers (ISPs) into “copyright cops” by pushing them to actively monitor the content from their users. The agreement, it added, could also result in higher criminal and civil penalties for sharing content and the expansion of the protection for digital rights management (DRM).

The updated Philippine IP law already includes a provision on DRM. In the new law, the circumvention of a technological measure in a protected work can be an aggravating circumstance in an infringement and can be used to increase the amount of damages for the right holder.

EFF noted that the US and Australia are opposing “any fair use that would extend to the digital environment,” prompting the organization to conclude that the TPP could result in “more stringent international IP standards without much regard for the collateral damage to the public interest.”

Another non-government organization, the Knowledge Ecology International, said the TPP could have, among other things, an impact on the parallel importation of copyrighted works. In a comment, it wrote that the US is lobbying for a ban on parallel importation of work.

It was only recently when the US Supreme Court ruled in Kirtsaeng v. John Wiley and Sons that a parallel importation of a legally-purchased copyrighted work was not a case of copyright infringement.

In Kirtsaeng, a Thai national who was studying in the U.S. bought books, through the help of some relatives, from the U.S. publisher John Wiley and Sons in Thailand. He then resold these books in the U.S. and took a profit from the activity. The books were priced dramatically lower in Thailand than in the U.S.

Here, the U.S. Supreme Court overturned a lower court decision and applied the concept of international exhaustion. This means that a legitimate buyer of a protected work has the right to resell the work even to buyers outside the territory where the first sale took place.

This early, it is hard to gauge the potential impact of the TPP as the talks are held in secret. All the analyses from third-parties used only the leaked and unofficial negotiating text. With this, the only thing that we can be sure of at this time is that the TPP could benefit right holders even more.

However, if the Philippines could not resist in joining the TPP, it is better for it to be involved in the drafting of the negotiating text to protect its interests rather than ending up later as a mere signatory. To add, the future Philippine negotiating team should keep in mind that we are not yet a country of creators and innovators.

On the other hand, some stakeholders in local business are also saying that a constitutional hurdle that limits foreign ownership in local ventures could make it difficult for the Philippines to be invited to join the negotiations. The Philippines has been waiting for an invitation to join the talks since 2010, according to them.


Maricel holds an LL.M. degree in Intellectual Property and Competition Law from the Munich Intellectual Property Law Center. An experienced business and technology journalist, she continues to write about technology and intellectual property developments.