Corporate Interests Using TPP to Protect Them From “Copycats”

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Yesterday, a collection of trade associations, including the RIAA, MPAA, and U.S. Chamber of Commerce, sent President Obama a letter [pdf] pressuring him to ratchet up protection and enforcement of intellectual property in the Trans-Pacific Partnership (TPP).

If we had any remaining doubts that the same companies who brought us SOPA and PIPA are using the secrecy surrounding the TPP to push through draconian copyright laws that failed spectacularly in Congress just a few months ago, this letter reminds us that the SOPA supporters are very much still around and actively pursuing stronger copyright laws. Now that the public has spoken out against unreasonable copyright laws in Congress, these businesses can simply move there efforts to a new forum—here, the TPP—in hopes that they can avoid the public outcry in a less transparent process.

A Skewed View of the U.S. Economy

This letter is also the first prominent example of industries misusing a recent report [pdf] from the U.S. Patent and Trademark Office and Economics and Statistics Administration to justify their copyright, trademark, and patent wish list without actually dealing with the ramifications of the policies they advocate. When the report came out, Public Knowledge noted the definitional problems in the methodology of the report, and warned that it could be manipulated by corporations only seeking to protect their particular business models, without regard to what is best for the public as a whole.

This letter capitalizes on the study’s weaknesses to assert that they represent U.S. interests “from every major sector of the U.S. economy,” even though they failed to include any internet-based companies on their roster, much less consumer representatives. The letter unhelpfully asserts that their intellectual property wish list won’t threaten public health, innovation on the internet, or free speech, but does not give any actual arguments or facts to back that up. As the public debate over the Anti-Counterfeiting Trade Agreement revealed, unbalanced intellectual property law can very easily threaten innovation, public discourse, and access to medicines.

Strange Bedfellows

The letter is signed by a broad range of trade associations, with the odd result that some seem to be inadvertently advocating for laws that will harm their members.

For example, manufacturing associations like the National Association of Manufacturers and National Electrical Manufacturers Association are apparently supporting the stronger copyright provisions that the U.S. has proposed [pdf] in the TPP. One of those provisions (Article 4.2 in the linked text) seems intended to solidify the argument that a copyright owner’s importation right trumps the right of the lawful owner of a copy to resell that copy if the copy was made outside the U.S.

Besides being an unsettled area of U.S. law that is currently pending before the U.S. Supreme Court, this provision is simply bad for U.S.-based manufacturers. This law would give a copyright owner a perpetual exclusive distribution right over a copy, even if the owner has already sold that copy away, only if that copy was manufactured outside of the U.S.

As a result, copyright owners have a strong incentive to move their manufacturing operations overseas to shut down secondary markets for their goods. This wouldn’t just apply to CDs and books—nowadays, toys, cars, electronic equipment, and anything with a computer program or contained in copyright-protected packaging would be affected. Knowing all this, it’s baffling that manufacturers are advocating for an agreement that would give their customers incentive to take their business elsewhere.

This industry letter is just another reminder of why Public Knowledge is traveling down to the Dallas negotiations to advocate for the public and fight for more transparency in the TPP negotiations. For more information and updates, you can visit www.tppinfo.org.

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