How we use the internet and access to music, books,
and films are at risk in the Trans Pacific Partnership
negotiations, sector groups claim. Geoff Cumming, of The New
Zealand Herald, hears their concerns.
Fred Dagg (Geoffrey Burns), left, lands a shot on the jaw
of Uncle Sam (Shane Hayes) during the Aotearoa Is Not For
Sale protest against the TPP in Wellington earlier this
month. Photo from NZ Herald.
If you think opponents of the Trans Pacific Partnership are
typically anti-free trade/anti-globalisation conspiracy
theorists, consider these unlikely bedfellows: librarians,
software exporters, researchers, book lovers, fans of DVDs,
media creatives and people who download music.
The negotiations for a trade deal covering 11 Pacific nations
have managed to unite these apparently unconnected sectors in
alarm. Most likely, they include you and me - everything and
everyone is connected in the digital age.
The United States' wish list for the agreement includes a
tighter regulatory regime for intellectual property (chiefly
copyright and patent laws), which interest groups say could
tie them - and us - in a dense legal web, affecting
everything from our use of the internet and access to music,
books and films to the fast-growing software development
How real are the fears? With the negotiations cloaked in
secrecy, we won't know until the deal is too far advanced to
unpick. Unless our negotiators (and those of the other
participants) can stare down the US position, there are fears
IP freedoms could be sacrificed for our overriding goal of
improved access for dairy and meat products to US markets.
This could usher in a litigious environment of alleged patent
and copyright violations - the kind which, in the US, is
notorious for thwarting innovation, stifling competition and
making patent lawyers rich.
Parallel importing is in the firing line, according to the
leaked draft of the US position. This could affect not just
knock-off copies but our freedom to source licensed brands
without the premium charged by licensees.
Apart from the damage to our Christmas shopping budgets, the
Libraries Association says a ban on parallel imports would
slow down access to new-release books in libraries. A longer
copyright length would restrict what libraries are able to
They could be prevented from overriding technological
protection measures such as zone restrictions on DVDs. Users
of iPhones and iPads may risk fines for ''jailbreaking''
devices to add non-licensed functions. Longer copyright
periods would narrow the options for musicians and media
Internet and copyright law specialist Rick Shera is concerned
about proposals to increase powers to prosecute and penalties
- up to $US150,000 ($NZ180,000) per infringement.
''There have been cases in the US where housewives have been
sued over [downloading] five to 10 songs,'' says Shera.
''You could end up with an iPod with $4 million of
infringements on it, as rights holders are able to seek a
multiple of the damages suffered.''
The film and music industries, which are driving the US goals
on IP, want internet service providers (ISPs) to monitor
internet activity for copyright breaches at their own expense
and to pass on alleged abusers' names to rights holders, says
Telecommunications Users Association chief executive Paul
Brislen says the huge monitoring costs would be passed to
''If ISPs are required to filter stuff or block websites,
it's the consumer who pays at the end of the day. It will
lead to things like deep pocket inspections [filtering] of
everybody's content which will slow down the internet and
raises privacy issues. ISPs risk being sued for the behaviour
of their customers - it becomes quite laughable.
You get lawyers claiming to represent rights holders and
demanding take-downs for content they don't have any rights
to or clients they don't represent. It's the kind of nonsense
that only the American legal system engages in.''
The devil is in the detail - and it quickly descends into
terminology that only trade treaty specialists and techno
geeks can decipher. Susan Chalmers is policy lead for
Internet New Zealand and spokeswoman for Fair Deal, a
coalition of the interest groups. She believes that the draft
US position threatens the very workings of the internet, for
instance by challenging the right to store copied material,
known as caching.
''The internet works by making temporary copies, or
`transient reproductions', of data in order to transmit it
from point A to point B,'' says Chalmers.
''The US proposals threaten the exception [in copyright law]
that ensures that copyright owners don't abuse their power by
suing anyone who intentionally or unintentionally makes a
This area is so fundamental to our use of the internet that
observers such as Shera pick it as a stalking horse - the
equivalent of the opening price at an Asian bazaar. But the
IP chapter for the agreement is so detailed - over 1000 pages
- there's a risk clauses will slip through which have
unintended consequences, Shera says.
''There's a huge amount of complexity in this. When it
reaches the select committee, it will be too late for the
public to change things. It would pay to get as many people
to have a look before [the public release] as possible.''
Don Christie of open source software specialist Catalyst IT,
says ISPs will tend to take a precautionary approach.
''Rather than going through a process of taking you to court
and giving you a chance to defend yourself they will tend to
act first [cutting service] and ask questions later. It's the
criminalisation of very natural activities on computers and
the internet, with the risk of fines that far exceed the
value of what's allegedly being copied.
''It has a huge chilling effect on activity and innovation
and greatly increases the cost of doing business.''
A government reversal in its reform of patent laws has only
heightened fears, suggesting to many tech firms that the TPP
process is already shackling the sector, which employs
28,000. Until August, software was set to be excluded from
patenting, a boon to firms who build on existing software and
data to develop new applications and packages.
But after lobbying from Microsoft and other US tech giants -
both directly and through the TPP talks - Commerce Minister
Craig Voss tabled changes which critics say will ensnare our
software development firms in the world of patent disputes.
Institute of IT Professionals chief executive Paul Matthews
says software that builds on previous concepts and developers
always runs the risk that someone has patented something they
''In the US, companies have managed to patent some pretty
obvious generic things and spend their time going after tech
companies. It's difficult to develop product without becoming
a target of patent trolls [lawyers and legal firms who buy up
patents in the hope of making money].''
New Zealand's biggest software exporter, Orion Health, fears
having to change the nature of its business.
''Most new software ideas have minimal originality and little
investment and so it makes absolutely no sense to afford
software the same patent protection as a new drug,'' says
chief executive Ian McCrae.
Of course, there are strong arguments in support of the US
stance - as basic as if you're not doing anything illegal
there's nothing to fear. But that's not the reality in the
US, where established players routinely use litigation to
delay competition and discourage innovation.
In an opinion piece in October, Stephen Jacobi, executive
director of the NZ US Council, emphasised that the TPP is a
negotiation - and the US position could be taken as the ''art
of the possible''.
''No-one wants to see prices go up or the internet
Interest groups' key concerns over leaked draft of US IP
• Extension of copyright terms, e.g., from 50 to
70 years for books after author's death.
• Clampdown on exceptions to copyright rules,
e.g., ''fair use'' provisions.
• Patents on software (New Zealand has already
reversed its plan to exclude software in review of patent
• Parallel imports subject to veto.
• Internet service providers responsible for
monitoring and policing. Rights holders can insist on removal
• Offence to circumvent technological protection
measures (e.g., region codes on DVDs, technology locks on