Wikileaks Releases Final Intellectual Property Chapter Of TPP Before Official Release

Last weekend, negotiators finally completed negotiations on the Trans Pacific Partnership (TPP) agreement. However, as we noted, there was no timetable for the release of the text (though some are now saying it may come out next week). Once again, it was ridiculous that the negotiating positions of the various countries was secret all along, and that the whole thing had been done behind closed doors. And to have them not be ready to release the text after completion of the negotiations was even more of a travesty. Wikileaks, however, got hold of the Intellectual Property Chapter and has released it online. Much of what's in there is (not surprisingly) the same as the previous leaked version, which was from May of this year. The newly leaked version, of course, confirms what New Zealand's announcement had revealed earlier this week: multiple countries caved in so that TPP requires signatories to extend copyright to life plus 70 years -- even though the US itself had been exploring reducing copyright terms (that now won't be allowed). Similarly, it locks in dangerous anti-circumvention rules that have hindered innovation and freedom. The final report shows that many of the problems we found in the May draft are still in this document. This includes the fact that while the agreement does at least make a nod to the public's rights such as fair use (which it calls "limitations and exceptions") it does so in a ridiculous way. All of the moves to make copyright stricter are mandatory in the TPP. They require signing countries to do things like extend terms and ratchet up punishment. But when it comes to fair use? Then it just says countries should explore the issue:

Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.

Shall endeavor? Every other clause is a flat out "shall." But when it comes to fair use it's "eh, maybe consider it." That's ridiculous, given just how important the public's rights are and how things like fair use protect those rights. There's also the issue of the public domain. As we noted in the May draft, the US and Japan actively opposed including "acknowledging the importance of preserving the public domain" in the section for "Understandings in respect of this Chapter." And it looks like the US won -- as that phrase is no longer in that section -- though there was a compromise. Further down in the document, a new section has been added acknowledging the public domain:

Article QQ.B.x: {Public Domain} 1. The Parties recognize the importance of a rich and accessible public domain. 2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.

That's better than nothing, but it is notable that this is no longer included in the section of "objectives." Because, of course, this document has no objective to celebrate the public domain. The copyright extension terms show that the objective is to destroy the public domain. And, as the EFF notes in its analysis, by moving where this discussion of the public domain occurs, the negotiators made it a happy platitude rather than a required part of any intellectual property policy:

That paragraph