Copyright Provisions in the TPP Would Stifle Innovation and Impede the Economy

How would you react if you found out that traffic laws made the roads more dangerous for pedestrians? Or if existing building codes led to newly constructed houses becoming less structurally sound? Most people would probably be distressed to find out if regulations meant to serve a certain public good in fact undermined their very purpose.

The rhetoric around copyright and patents has been that they are unquestionably effective at promoting creativity and innovation. If you’ve been following EFF’s work over the years however, you would know that that’s simply untrue. In the U.S., we have seen case after case where new businesses, innovators, researchers, and artists have been silenced or sucked dry in the face of harsh copyright enforcement provisions.

The intellectual property chapter in the Trans-Pacific Partnership (TPP) lifts and exports some of the worst parts of the U.S. copyright regime to the rest of the world. Here, we highlight just a few ways that those TPP provisions could debilitate the very people they supposedly meant to benefit: innovators and artists.

Expensive cost of enforcement can impede new Internet-based start-ups

The TPP carries provisions that could have the effect of making Internet service and content providers liable for copyright infringement by their users. The leaked draft includes a U.S.-style safe harbor provision that is meant to ensure service providers do not have an obligation to monitor their users’ activities in most instances. The safe harbor provision gives companies a way to protect themselves from legal liability as long as they put in place notice and takedown procedures. However, similar language in U.S. copyright law has not stopped large content owners from bringing lawsuits that, if successful, would require websites and service providers to become  copyright cops. This leads to a number of setbacks.

For Internet Service Providers, the cost of implementing a system to oversee all users’ activities and process each takedown notice could be excessive. At the very least, companies would be forced to sink significant resources into legal defenses, and thereby discouraging investment.

Even if they are arguably in compliance with the safe harbor provisions, websites and services that enable platforms for social, user-generated content risk being hit with a copyright infringement suit. For example, Veoh, a web host that made every effort to “play by the rules,” was hit with a massive lawsuit. Several courts have said that Veoh was protected by the safe harbors, but litigation costs still put the company out of business. If replicated abroad, cases such as these can lead to such services becoming overcautious about hosting content, and lead them to take down, filter, or block subjects.

Legal protections for technologies that block innovation and fair competition

Digital rights management (DRM) software, also known as technological protection measures (TPMs), is code installed on devices to limit the use of content after sale. The supposed purpose is to prevent infringement of the content on the device (such as software, music, books, etc). Despite growing evidence that DRM technologies do much more harm than good, the TPP mandates legal restrictions that can be used to punish innovators and researchers for “circumventing” DRM—even if the circumvention is for a lawful purpose.

DRM can easily be used to support anti-competitive business practices and hamper innovation that builds upon existing technologies. For example, a company can prevent “unauthorized” software or digital content from interoperating with their devices by inserting DRM.

Overbroad definition of a “copy” allows existing dominant companies to crush new innovative businesses

All routine computer functions rely upon the regular creation of temporary copies of programs and files. Temporary copies are files that are automatically copied by computers into their random access memory (“RAM”) during everyday operations, and so temporary copying of data is fundamental to how computing works in general. The TPP has a provision that includes even “temporary reproductions” of copyrighted works without rightsholders’ permission as a potential copyright infringement. This definition is so broad it could be used to penalize and control a wide range of obvious legal activities.

In the U.S., there is a history of entertainment, tech, and other companies relying on this broad definition of a copy to sue independent creators and innovative services out of existence. A computer repair technician was sued for copyright infringement for simply loading a computer program into memory. Motion picture and television companies sued Cablevision, a cable TV provider, over