Wikileaks recently released an August 30th draft of the Trans-Pacific Partnership Agreemnt (TTP) which has received wide spread criticism for proposing  greater than anticipated protection for intellectual property holders. The TTP is supposed to align countries in the protection of intellectual property, but the United States proposal goes above the current level of protection the country currently offers to IP holders. Some believe that the United States is using the TTP in an attempt to pass similar legislation that failed, the Cyber Intelligence Sharing and Protection Act (CISPA) and the Stop Online Piracy Act (SOPA), which would cause other countries to raise their level of protection above what the United States currently provides.

The draft itself covers a range of topics including but not limited to copyright infringement, digital rights management, technical protection measures, patentable plants and animals, and internet service provider liability. But for the purposes of this post we will be focusing on Internet Service Provider (ISP) liability and some Technological Protection Measures (TPM).

Internet Service Provider Liability

Canada and the United States are currently opposing each other on what should be required of ISPs to obtain limited liability. Under the Canadian proposal ISPs would not be allowed to provide services that are primarily used for infringement and would receive limited liability for creating an notification process. The notification process would make users aware of their potentially illegal act and would provide users with a chance to defend their position. Whereas, the US proposal potentially requires ISP providers to block content and even cancel a subscriber’s service. Additionally, the US approach would require ISPs to perform specific actions to receive different types of limited liability and would require each ISP to “establish an administrative or judicial procedure enabling copyright owners … to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.”

Technological Protection Measures

Technological protection measures (TPM) are measures taken by producers or distributors to “block or limit access to a work, or certain actions with respect to the work (e.g., copying). TPMs include such things as encryption, passwords, and access controls.” This draft of the TTP proposes to criminalize acts “independent of any infringement that might occur under the Party’s law on copyright and related rights” which could also potentially affect Digital Rights Management (DRM) material. This could mean, for example, that stripping a song purchased off of iTunes back in 2005 of its DRM protection so it can be played on a different advice, would be a violation of the law even though the purchaser had the right to put the song on that device. Basically if these provisions go through, the act of removing a TPM or DRM to use whatever the TPM or DRM is protecting in a legal manner would become illegal.

Mike Bill is a J.D. candidate, ’15, at the NYU School of Law.

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