As Congress considers whether to approve the Trans-Pacific Partnership, consumer groups are picking apart a provision in the deal that could have a long-term effect on content providers like Google News and the Drudge Report.
Though President Obama said the treaty would promote a “free and open Internet” while preventing laws “that restrict the free flow of data and information,” critics say it does the opposite by turning Internet service providers into online enforcers. Violations of copyright law could result in prison sentences of up to 20 years, and foreign corporations could be allowed to sue the U.S. government for lack of enforcement through a process known as “investor state dispute settlement.”
“Almost everything in TPP is kind of ripe for a challenge under ISDS,” said Maira Sutton, a global policy analyst at the Electronic Frontier Foundation, in reference to approximately 9,000 multinational corporations that would be empowered to bring suit against the federal government under the treaty’s terms.
One example of a consequence: If a journalist accessed something considered to be a “trade secret” over the course of an investigation in communist Vietnam, the country’s regime could bring a suit against the U.S. government for failing to prosecute the incident as commercial theft once that story’s posted online.
And while copyright laws often apply to things like published works or TV programs, the accord would represent a vast expansion over that common understanding. Under Section J of the treaty, governments would be required to create “legal incentives” for Internet service providers “to cooperate with copyright owners to deter the unauthorized storage and transmission of copyrighted materials.”
Those terms mean American ISPs, like Comcast or Verizon, would be required to take on a new, expanded role as enforcers on the web, responsible for tracking down illicit content on their sites.
Critics worry what that could mean for Internet freedom, and their concerns are enhanced by the prospect of any similar agreement being inked in the future with the European Union, where countries like Spain and Germany have “ancillary copyright” laws. Those laws prevent website operators from providing even previews of content elsewhere on the web without providing compensation.
In Germany, publishers have the right to opt out of the law. However, that option does not exist in Spain. As a result, Google News was forced to shutter its operation in the country in 2014, and ancillary copyright law has become informally known as a “Google News tax.”
Those laws could have a similar effect in the U.S., but they would be particularly hurtful to outlets that do a bulk of their business online.
Matt Drudge in October said that such a law could end his popular Drudge Report and force users into what he called “corporate ghettos” like Facebook and Twitter.
And if the U.S. does tighten copyright laws through treaties like TPP, there will be no way out in the future.
“A concern about the ISDS process is that if there’s a new exception to copyright, or new fair use ruling in the United States for instance, that could be challenged as undermining the content industry’s copyright stake, and their expected restrictions on copyright that have been enacted elsewhere in the TPP,” Sutton said.
While a content producer like Google News has the ability to challenge laws under the treaty, Sutton added that the process isn’t exactly designed to favor them.
“Theoretically, a site like Google could challenge ancillary copyright rules in countries that have them, but it goes the other way as well in that [publishers] could go after a site like Google for helping people with, say, visual disabilities by converting books, or for doing more things with indexing or previewing content online … that could be challenged under ISDS in a treaty,” Sutton said.
“The ability to talk about and reuse creative works matters,” she added. “Yet the impact the TPP will have on them was never taken into account.”
