#CyberFLASH: The Trouble with the TPP, Day 20: Unenforceable Net Neutrality Rules

15109096143_418befce5e_k-780x350One of President Barack Obama’s selling points for the TPP has been claims that it helps preserve “an open and free Internet.” The references to an open and free Internet, which is closely linked to net neutrality, may strike a chord with those concerned with digital issues. However, the Trouble with the TPP is that a close examination of the text and a comparison with existing net neutrality rules in many TPP countries reveals that it doesn’t advance the issue. In fact, the standards are so weak and unenforceable that at least half of the TPP countries already far exceed them.

Article 14.10 of the TPP provides:

Subject to applicable policies, laws and regulations, the Parties recognise the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of a consumer’s choice available on the Internet, subject to reasonable network management;
(b) connect the end-user devices of a consumer’s choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer’s Internet access service supplier.

As a starting point, this is not mandated obligation. The TPP countries merely “recognize” the benefits of some net neutrality provisions. For those countries without net neutrality rules, there is no requirement to implement anything in order to comply with the agreement. In fact, if there was any doubt about the lack of enforceability, the entire provision is prefaced by the reference to “subject to applicable policies, and regulations.” In other words, the provision doesn’t advance anything for countries without net neutrality provisions.

For those with net neutrality provisions, the TPP typically falls well short of what they already have in place. In Canada, the CRTC’s Internet Traffic Management Practices go far beyond the TPP, offering more comprehensive coverage, a complaints mechanism, and enforceable obligations overseen by the CRTC. Many other TPP countries also have stronger net neutrality rules:

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#CyberFLASH: Why the TPP is a Canadian Digital Policy Failure

23065912105_d47e1e8ba5_k-780x350The official release of the Trans Pacific Partnership (TPP), a global trade agreement between 12 countries including Canada, the United States, and Japan, has sparked a heated public debate over the merits of the deal. Leading the opposition is Research in Motion founder Jim Balsillie, who has described the TPP as one of Canada’s worst-ever policy moves that could cost the country billions of dollars.

My weekly technology law column (Toronto Star version, homepage version) notes that as Canadians assess the 6,000 page agreement, the implications for digital policies such as copyright and privacy should command considerable attention. On those fronts, the agreement appears to be a major failure. Canadian negotiators adopted a defensive strategy by seeking to maintain existing national laws and doing little to extend Canadian policies to other countries. The result is a deal that the U.S. has rightly promoted as “Made in America.” [a video of my recent talk on this issue can be found here].

In fact, even the attempts to preserve Canadian law were unsuccessful. The TPP will require several important changes to domestic copyright rules including an extension in the term of copyright that will keep works out of the public domain for an additional 20 years. New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. The Canadian cost is undoubtedly far higher.

In addition to term extension, Canada is required to add new criminal provisions to its digital lock rules and to provide the U.S. with confidential reports every six months on efforts to stop the entry of counterfeit products into the country.

While these are all changes that reflect U.S. standards, there was little effort to promote some of Canada’s more innovative copyright policies in the agreement. The U.S. has allowed Canada to keep its “notice-and-notice” policy for Internet providers, but on the condition that no other TPP country may adopt it. Meanwhile, Canadian policies that promote user generated content, limit statutory damages, or establish consumer exceptions are all missing from TPP.

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#CyberFLASH: TPP Threatens Canadians With Law Suits

a-woman-uses-her-computer-keyboard-to-type-while-surfing-the-internet-in-north-vCopyright activists say Canadians could face lawsuits, fines or worse for ripping the latest Justin Bieber CD or uploading an animated GIF of Jose Bautista’s bat-flip under a new trade deal, and they’re calling on the newly elected Justin Trudeau to act.

A major part of the Trans-Pacific Partnership deal finalized Oct. 5 involves harmonizing copyright laws in the 12 Pacific Rim countries — including Canada, the United States, Australia and Japan — that are signatories to the deal.

While the final text of the international trade agreement has yet to be published, the website Wikileaks released what it claims is the intellectual property chapter of the TPP on Oct. 9.

“Canadians don’t realize that the way that they use the Internet every day is going to change dramatically,” said Meghan Sali, a spokeswoman for the digital-rights advocacy group OpenMedia.

On the campaign trail, the prime minister-designate said he supports free trade and will thoroughly examine the TPP deal, while criticizing the secrecy under which the pact was negotiated.

Consumer organizations and outside groups were shut out of the negotiations, and the governments involved have released little information on the back and forth over what has been called the largest trade deal in history.

“We’re heartened to see him recognize that this process has been not just opaque but inaccessible and undemocratic,” said Sali.

The Electronic Frontier Foundation, an American advocacy group, has said the TPP threatens to override Canada’s copyright regime and promotes the interests of copyright owners and corporations at the expense of the public.

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Canada joins closed door Trans Pacific Partnership negotiations: Critics warn Canadian Internet rights will suffer

Canada has officially joined Trans Pacific Partnership negotiations, a move that Canadian Internet advocates say could result in harsh restrictions on Internet use in Canada and leave ordinary citizens facing heavy fines and banishment from the online world over accusations of copyright infringement.

“The (TPP) agreement is being negotiated in secret but we do know from documents we have obtained that in the agreement are provisions that make it so there can be heavy fines for average citizens online, you could be fined for clicking on a link, people could be knocked off the Internet and web sites could be locked off,” said Steve Anderson, founder of Vancouver’s OpenMedia.ca, which was joined by theElectronic Frontier Foundation, the U.S. digital rights group Public Knowledge, the Council of Canadians, the global consumer advocacy group SumOfUs.org, the software company Tucows, the Chilean public interest group ONG Derechos Digitales and the Washington, D.C.-based watchdog group Public Citizen in opposing Canada’s move to join the negotiations, binding the country to the agreement when it is reached.

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