Introduction
Last week, Wikileaks released what appears to be the full text of the Intellectual Property Rights (IPR) chapter of the Trans-Pacific Partnership Agreement (TPP). Within hours of the leak, various news outlets, including the Guardian and the Washington Post, academic experts and NGOs, all chimed in to express their concerns over (some) aspects of this Free Trade Agreement (FTA).
The TPP IPR chapter is over 90 pages long and the text is dense, complex, covering a range of intellectual property rights, including trademarks, copyright, patents and geographical indications. The text seeks to find some common ground between the negotiating nations of the United States, Canada, Chile, Mexico, Peru, Singapore, Brunei, Japan, Malaysia Australia, Vietnam and New Zealand; it seeks to address some hard questions that will eventually affect creativity, innovation and cultural expression. Such impact is not only seen in the context of the TPP – all agreements that include IPR chapters seek to create a framework to address issues of creative expression and innovation. Let’s not forget that, historically, intellectual property rights are part of a philosophy that can drive economic growth, societal development and political change. Intellectual property is based on a balanced framework of protecting authors, creators, innovators and, ultimately, the public at large.
The big question is whether the TPP IPR chapter – in its current form – supports this philosophy. This is not easy to answer as the text is highly bracketed and still incomplete. The negotiating countries are in the process of trying to understand how this chapter will affect not only their trading relations and practices, but also regional and local sensitivities. In this sense, each negotiating party will view, approach and ultimately relate to the TPP in a completely different way.
It’s also important to understand that the TPP is not just about the Internet. Unlike the Anti-Counterfeiting Trade Agreement (ACTA), the TPP IRP chapter includes only some provisions that can impact the Internet ecosystem; overall, however, it covers issues that go beyond Internet and its technologies. This doesn’t make the TPP IPR chapter less important or relevant, it just makes it an agreement with a broader subject matter.
For the purposes of this blog and as we continue to absorb the details of this agreement, I will focus on two issues directly related to the Internet: copyright (in the context of intermediary liability) and trademarks (in relation to domain names).
Copyright and Intermediary Liability
The TPP negotiating partners appear particularly split with regards to intermediary liability and this split relates to the role and responsibility Internet intermediaries should acquire. Should Internet intermediaries be proactive in removing and filtering content or should they retain their original role of not ‘checking’ content? What should be the legal framework intermediaries should adhere to?
The issue of intermediary liability is not new and it has no easy answers and no easy solutions. ISOC has been consistent in suggesting that intermediaries should not be held liable for the traffic that runs through their channels; they should not become the ‘police’ of the Internet.
If the law requires Internet intermediaries to be proactive in removing or filtering content, then these same intermediaries will be in the position to make a determination of which type of content is legal and which is not. This is an intense exercise that requires the ability to produce recommendations that follow certain standards of due process. Private bodies do not possess the legitimacy nor the tools to make such determinations; expecting them, therefore, to do so on the basis of liability will inevitably create an environment of fear, as they seek ways to comply with this regime. Additionally, considering that intermediaries are essentially businesses with occasionally strong ties to content providers, we should also bear in mind how this direction might encourage an environment of anti-competitive and/or discriminatory practices.
Moreover, there is the issue of costs. Even if we were to legitimize the ability of Internet intermediaries to ‘review’ and determine what type of content should travel through their channels, this would require investment in identifying the best mechanisms and practices to do so. This investment will most probably be a combination of technical tools and human capital. Who will bear these costs? Will it be just intermediaries? Will it be users? Or, a combination of both?
Which brings us to the issue of symmetry. How will a strict liability regime fit within the existing copyright system? How does it fit within the Internet ecosystem as a whole? In the first case, there has been an extensive debate and effort to make sure that copyright does not subject intermediaries to a regime of fear where they need to perform certain tasks they were never meant to perform. In the second case, since its inception, the Internet has worked on an organized structure where each participating actor is assigned a specific role. In this instance, the role of intermediaries is to provide the platform for traffic to travel and not to ‘police’ that traffic or determine to whom it will be visible.[1]
Trademarks and domain names
In addressing the issue of trademarks in the Internet, some countries propose a mechanism modeled under the principles of the Uniform Domain Name Dispute Resolution Policy (UDRP) – an administrative process, created in 1998 by the Internet Corporation for Assigned Names and Numbers (ICANN), to resolve domain name and trademark conflicts.
It is interesting to see the TPP referring to the UDRP and suggesting it as a model. As mentioned, the UDRP was originally created to operate in the gTLD environment; as ccTLDs evolved, some of them adopted the UDRP or a UDRP-like dispute resolution. Over the years the UDRP has gained international recognition as the dispute resolution mechanism for domain names and trademark disputes, for many reasons including that it has managed to efficiently address the territorial and jurisdictional restrictions of trademark law; it has provided a cost-effective and quick way of resolving cybersquatting.
One of the things we need to understand is that the UDRP is far from a perfect system. It is the oldest ICANN policy and it has never been reviewed. It is driven by a set of rules that made sense when it was created, but they do not necessarily reflect current and existing domain name practices; it has been heavily criticized and has equally been praised. But, ultimately, what we need to remember is that it is a system that was created to address cybersquatting in the gTLD environment.
The TPP proposes implementation of the UDRP in the context of ccTLDs. This is not the first time we see this recommendation appearing in the context of FTAs.[2] The question, however, is whether the trend of using the UDRP or its principles as a point of reference should be replicated in the context of the TPP? Suggesting implementation of the UDRP for ccTLDs without a careful review of whether the UDRP can ultimately address the challenges ccTLD communities and registrants face risk being counterproductive. The gTLD environment is not the same as the ccTLD one. ccTLDs reflect cultural and religious sensitivities, they address highly local and, less often, regional challenges and, they are often bound by territorial restrictions. Transposing a policy that was designed to adapt to a generic top-level domain names environment into a diverse country code top level environment could create a regime that fails to take into account the heterogeneity and the territorial legal boundaries of the negotiating parties.
At the ICANN public meeting in Buenos Aires, the ccNSO – the council that discusses and addresses issues related to ccTLDs – discussed the TPP and tis recommendations. Some ccNSO members expressed concern over the UDRP’s reference, issues of privacy as well as remedies.
Concluding comments
Intellectual property discussions are never easy; when they relate to the Internet, they are even more complex. This is because the Internet demands a new set of considerations and values that actors should bear in mind. Cooperation is key in order to sustain an open Internet and comply with basic standards of due process and fairness.
Of course, given the fact that the Wikileaks text is not the final draft, this text is amenable to change. But, even if this text ends up changing, this discussion is not futile. What the current draft demonstrates is that there are forces that push and pull intellectual property to all sorts of directions. This is not productive for the advancement of the discussions and it does not help stabilize or sustain the current Internet environment.