I've now skimmed through the leaked IP Chapter of the final TPP agreement, and I've read some commentary on it. I'm not sure what to make of it, but at the moment I'm trying to decide if there's anything to make of it. As I read it, almost all of the provisions are an exportation of US law to the agreeing countries - for good or bad. But as a US scholar, that has me thinking, "meh" - at least as to the content of it. I'm not aware of any consensus that the way these other countries were doing things is so much better than our way. Or so much worse, for that matter. I understand concerns that the TPP represents the U.S. getting
other countries to agree to its view of the world in exchange for
whatever other benefit those countries think they will be getting, but that's not what this post is about. Instead, this post is about whether the TPP is creating some new law. (Disclaimer: I haven't looked at the pharma/biologics sections in detail. I know that these sections, in particular, might create issues in other countries in a way they don't currently experience).
But the hand-wringing I've read in content reviews seems odd. Many complain that copyright term will increase from life + 50 to life +70. I think that's no big deal - forever + 20 isn't that much longer than forever. This doesn't mean I agree that the duration is a good thing; I don't. Life + 50 is already too long. I just think that if this is what you have to complain about, then there's not so much to complain about.
Other analysis is similar. The EFF points out the shocking clause that breaking digital locks may be punished even if there is no copyright infringement. The italics are theirs, as if this is some new thing. But it turns out that's been the law in the US since the DMCA was passed more than 15 years ago. Similarly, another website complains that devices used to break digital locks may be forfeited and destroyed. Shocking again! Except that this, too, has long been a potential remedy under the law in the U.S.
Don't get me wrong. People who like US law as is will be pleased with the TPP. People who don't like US law as it is will not be pleased with the TPP. But regardless of which camp one is in, I am not convinced that the world will be a significantly better or worse place because of the IP provisions of the TPP.
So, where does this leave us? The TPP has real problems, but they aren't substantive -- at least not newly substantive:
1. The secret negotiation process was not great. But I'm a cynic and think the outcome would have been the same.
2. The TPP locks in US law as it is, so dreams of orphan works and reduced IP protections are gone. But I'm a cynic and think that we are locked in anyway.
3. The TPP exports US law to other countries, extending its hegemony. I'm not convinced that this will change things one way or the other. But I'm a cynic, so time will tell. In the meantime, I don't think anyone's prediction will be accurate.
4. This is long and dense, and there may be parts that will change U.S. law in some way that isn't being discussed now. And I'm a cynic, so I'm sure there are.
