A draft of the Trans-Pacific Partnership's "Intellectual Property" chapter from May 11, 2015 has recently been leaked to journalists. This is the fourth leak of the chapter following earlier drafts of October 2014, August 2013, and February 2011. The latest leak is not available online and we don't have a copy of it—but we have been briefed on its contents.

In most respects the chapter follows previous drafts pretty closely; for example, the text on DRM circumvention and copyright term are both largely unchanged. But there is one area in which significant progress has been made since the last draft, and this is in the text on intermediary liability rules. Specifically, the new change involves the immunity that Internet companies enjoy from copyright liability, provided that they satisfy certain safe harbor conditions.

Under the United States' Digital Millennium Copyright Act (DMCA), these safe harbor conditions require Internet intermediaries to comply with a “notice-and-takedown” process. This has seen legitimate content taken off the Internet in response to bogus claims of infringement, as in the famous dancing baby case, as well as being misused for political censorship. Until now, one point of contention among the TPP partners has been whether countries that don't already have an equivalent to the DMCA's broken notice-and-takedown rules would be forced to adopt one.

Alternatives to Notice-and-Takedown

Several of the TPP countries already have systems that are significantly better than the DMCA. For example, Canada's groundbreaking notice-and-notice regime, which only commenced this year, notifies users of copyright claims without requiring any content to be taken offline automatically. Similarly, Chile has a 2010 notice and judicial-takedown regime that requires a judge to review any takedown before it takes effect. And Japan has something of a hybrid—a judicial order is not required, but takedown requests are verified by a trusted self-regulatory authority before the intermediary acts on them.

The latest leak suggests that the U.S. is now likely to accommodate at least some of these existing intermediary liability regimes, rather than forcing a carbon-copy of the failed DMCA on its TPP partners. The text does enforce a more generalized model of limitation of liability for intermediaries for third party content, and imposes a range of conditions before they qualify for that protection. But those conditions are now broad enough to accommodate a Japanese-style system in which a self-regulatory authority, formed by intermediaries and rightsholders with government involvement, is required to verify notices of claimed infringement before they are acted on.

Chile (supported by Vietnam) has inserted a footnote to this ISP liability text, indicating its proposal that a judicial authority should be required to verify notices of claimed infringement, rather than the self-regulatory authority that Japan proposes. The U.S. has not explicitly noted its objection to that proposal, though this may simply be because as a minority proposal not yet reflected in the main text, it hasn't yet advanced to the point where the U.S. feels it necessary to express its disagreement. Or perhaps negotiations are still ongoing on this question.

Whither Canada?

What about Canada? Interestingly, Canada's system is not accommodated within the main text, but in a separate annex. The annex would exempt a country (such as Canada, implicitly) from the requirement to have a notice-and-takedown system provided that it already has a system in place requiring intermediaries to pass on notices of alleged infringement to their users.

But in exchange for this “leniency”, such a country has several superadded copyright enforcement obligations that other countries do not: most notably, they must also impose secondary liability on intermediaries for services that are primarily used to enable copyright infringement, and must require search engines to remove cached copies of copyright-infringing items after the originals have been removed.

Neither of these are good ideas. Imposing liability on intermediaries for services that can be used to infringe copyright inevitably also ensnares general purpose technologies such as cloud storage services and Virtual Private Networks (VPNs). And as for the removal of infringing copies from search engines, the context in which copyright works are presented can raise a case of fair use (or fair dealing, Canada's equivalent). That is, it may be fair use for a search engine to provide a point-in-time archive of material that it has indexed, even if in its original context that material may have been infringing.

More fundamentally, we worry about this horse-trading of one strict copyright enforcement measure for another. Canada's notice-and-notice system is not a “second best” alternative to notice-and-takedown, and therefore there is no justification for the TPP to force Canadians to supplement it with additional enforcement measures that could have negative effects of their own.

A Few Notable Improvements

There are some other notable changes to the draft that are positive, and follow recommendations from the Manila Principles on Intermediary Liability. For example:

• The text now requires parties to provide penalties for knowingly false takedown notices (but also for false counter-notices).
• Content that has been removed in response to a takedown notice must be restored if a valid counter-notice is received.
• A failure of an intermediary to satisfy safe harbor conditions should not automatically make them liable for the user's copyright infringement—it just means that they are no longer protected from being found liable in court.
• The limitations on liability that intermediaries enjoy may not be made conditional on their proactively monitoring uploads to their networks.

But despite these few concessions, welcome as they are, the text as a whole is not geared towards dealing adequately with the human rights of users. Why should we expect otherwise? It is, after all, drafted by trade experts, at the direction of trade ministries, informed by corporate-stacked advisory groups who are not interested in freedom of expression and the open Internet, but in greasing the wheels of commerce. These few improvements in the intermediary liability text are just that—grease to allow these intermediary standards to slip past the defenses of the countries that have been resisting the imposition of U.S.-style rules until now.

Intermediary liability rules are much more than a trade issue. It is indeed an issue that deeply impacts human rights—since it is only when they are shielded from liability that intermediaries are appropriately incentivized to foster users' freedom of expression and freedom of association online. Such rules ought not to be crafted by small groups of trade negotiators behind closed doors.

This latest leak indicates that the negotiating countries are coming closer to consensus on common intermediary liability rules. Although that text may be looking better than in previous drafts, the TPP members' surrender of control over developing such rules to a closed, captured process is not good news. Taken together with the remaining threats from the IP chapter, such as enhanced protection for digital locks, trade secret rules that could be used against journalists and whistleblowers, criminal sanctions for even non-financially motivated but large scale infringement, and the extension of copyright term by 20 years, the case for us to fight the TPP has never been more compelling.