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Companies Will Be Able to Sue Governments For Breaking TPP Copyright Rules

The full text of the secretive agreement was released today.

by Jordan Pearson
Nov 5 2015, 8:22pm

Image: Flickr/Backbone Campaign

Canada is the most-sued country under international free trade agreements that make it possible for private companies to sue governments for billions of dollars if a law threatens to hurt their profits. Now more legal trouble could be on the way under the Trans Pacific Partnership.

The full text of the Trans Pacific Partnership, the massive international trade deal that loops in 12 countries amounting to 40 percent of the world's GDP, was released on Thursday after seven years of negotiations carried out entirely in secret.

Experts say that a stipulation in the investment chapter of the TPP means that lawsuits from foreign corporations—Hollywood studios and device manufacturers like Apple or Samsung, for example—are on the way for Canada, especially over issues like device hacking, tinkering, and digital piracy.

The chapter states that intellectual property rights are one of the grounds a company can sue a government over, which is too bad, because the IP chapter is a fucking mess. For example, if Apple took issue with Canada's laws that say it's okay to bypass Apple's digital "locks" on the iPhone so you can switch carriers, it would have grounds for a lawsuit.

"We'll have to go to an international tribunal [...] and it's almost 50/50 as to what they'll say"

"Something that might get Canada in trouble very directly is if any company not based in Canada says they don't want this cell phone unlocking thing that you allow in your copyright law, and that the CRTC now actually requires companies to let you do," Tamir Israel, a staff lawyer for the Canadian Internet Policy and Public Interest Clinic, told me in an interview.

"That's one specific example where if we get sued over that," Israel continued, "we'll have to go to an international tribunal and prove to them that the competitive landscape in Canada requires this, and it's almost 50/50 as to what they'll say."

Another example: under the TPP, if a Canadian court rules that a site hosts copyright-infringing content, then internet service providers must block access to a site. If a court found that a site hosted illegal content, The Pirate Bay for example, but didn't order that the site be blocked and the content doesn't get blocked, then it's possible that a foreign media copyright owner, say a Hollywood studio, may sue the government.

Digital rights activists, basing their analysis on leaked chapters, previously believed that copyright and intellectual property would be the most onerous provisions, since they would introduce new civil and criminal penalties for digital piracy, open the door to website blocking in Canada, and put a chill on security research.

Watch more from Motherboard: All the Ways to Hack Your Phone

The inclusion of intellectual property as something to sue over in the TPP's investment chapter confirms many of these concerns, and adds yet another layer of danger for governments passing laws that protect their citizens' rights.

As a result, "the inclusion of intellectual property as a covered asset in the TPP investment chapter is potentially more consequential than anything in the TPP IP Chapter itself," James Love, director of information policy think tank Knowledge Ecology International, wrote in an analysis of the TPP's full text.

Even though the text of the TPP deal has been made public, it must go through legal and language review processes that will ensure it reads the same in every signing country, from New Zealand to Malaysia. There's also the process of ratification — the agreement will be debated and voted upon by the governments of signing countries, which promises to be anything but smooth sailing.

In the US, prominent politicians on both sides of the left-right divide, including presidential frontrunner Hillary Clinton, have stated that they do not support the deal. In Canada, things are less tense—Trudeau's liberals, recently elected into power with a huge mandate, have said they will "evaluate" the deal, but do not oppose it. The Conservative government, now the official opposition in parliament, negotiated the deal in the first place.

"My own personal view is that ratification will be a pretty simple and non-contentious process in all of the TPP signatories except the US, where there is going to be a huge fight," Vivek Krishnamurthy, an instructor at the Berkman Center at Harvard's cyberlaw clinic, wrote me in an email.

The ratification process is not expected to begin for months.
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