Executive Summary of Public Knowledge White Paper on the Trans-Pacific Partnership

Below is the Executive Summary from our white paper, "Assessing Effects of the Trans-Pacific Partnership on Telecommunications, IP and Public Interest." You may view and download the full paper here

Assessing Effects of the Trans-Pacific Partnership on Telecommunications, Intellectual Property, and the Public Interest: Executive Summary

In this document, Public Knowledge (PK) does not take a stance on the Trans-Pacific Partnership (TPP) as a whole, including whether the U.S. should adopt it. However, in the areas where PK has subject matter expertise, PK believes that policymakers should interpret the TPP in ways that are most consistent with the public interest, or with current U.S. law.

With some exceptions, the TPP is consistent with current U.S. law in the areas PK has analyzed. This is its strength and its weakness. Procedurally, this is a strength, in that if the U.S. adopts the TPP, statutory changes can be zero or minimal. But substantively, this can be a weakness, because to some extent the TPP restates areas of law, particularly in the realm of intellectual property, that call for reform. Nevertheless, a proper appreciation of the effect of trade agreements on domestic law should enable policymakers to continue to explore reforms.

For global consumers and internet users, the effects of the TPP may be mixed. The TPP endorses key Open Internet principles and requires independent telecommunications regulators, which are good policies for consumers and the public interest. It also exports U.S. copyright law in some respects, both in areas where that body of law fails to fully protect the interests of the public and in areas where it can protect access to information and the rights of users. While the TPP fails to specifically reference fair use, which is constitutionally required in the United States, it does require countries to adopt copyright limitations and exceptions as part of their efforts to achieve balance in their copyright systems. Such limitations and exceptions may include a broad and flexible fair use framework or a set of specific exceptions that provide similar scope and flexibility for activities in the digital environment. Provided that all signatory countries ensure that robust limitations and exceptions to copyright law protect the interests of free expression and protect innovative uses of works, negative effects of the copyright provisions of the TPP on the public interest can be ameliorated.

The TPP also requires signatories to adopt safe harbors that protect Internet services from copyright liability, and prohibits signatories from conditioning these safe harbors on requirements to monitor user activities or affirmatively seek out facts indicating infringement. Coupled with language on limitations and exceptions, these provisions can be a force for good in countries that currently lack intermediary liability protections and balanced copyright—although much depends on how countries implement this language and what guidance the U.S. provides.

In other areas, particularly patents and the video marketplace, the TPP’s provisions could potentially diverge from current U.S. law. In those areas, Public Knowledge urges policymakers to ensure that any implementations minimally burden the public interest and avoid creating duplicative legal doctrines that may lack the balance of existing law. Some other areas of the TPP could also bear on access to information and the Open Internet, including provisions affecting privacy, data localization, the transfer of information, and trade secrets. This document does not analyze those issues.

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