Patently Absurd

Intellectual Property And The TPPA

- Mary Ellen O’Connor

Most of us have rejoiced at the democratic possibilities of the Internet, have enjoyed the sheer anarchic nature of it, have experienced or maybe envisaged the multiple liberating functions it could perform. At its best it is the information superhighway, the debating chamber for the globe, a vital communication tool and lifeline. Too democratic, too anarchic, too liberating perhaps That’s what been decided by (largely) American entertainment and information technology (IT) industries who stand to lose through the very technology which they have helped build and promote so aggressively. Now they are using the façade of “free trade” agreements, particularly the Trans Pacific Partnership Agreement (TPPA) to attempt to censor and limit Internet use in the name of copyright to rake in even greater profits than they do now.

But how come the TPPA is connected with intellectual property (IP) and copyright law? The fact is that free trade and investment agreements have almost nothing to do with trade as we understand it. Their rules are designed for, and indirectly by, the most influential corporations in the countries involved. And guess who dominates? Major American corporations ranging from the world’s biggest drug companies and banks to Hollywood comprise almost 600 cleared advisors that get to see the secret text and lobby for their interests. Getting their demands into trade agreements is part of a general move towards “forum shifting” and “policy laundering” which refer to moving debate away from places where there is at least some requirement for public input and transparency, such as elected parliaments. Librarians, artists, writers, Internet businesses, schools, universities, museums, scientists and Internet users in general are all concerned about what the IP provisions of the TPPA will do to New Zealand’s copyright law.

Extending Copyright

Not surprisingly the IP chapter carries some of the greatest risks and potential costs of the entire negotiations. This is because the most powerful party to the negotiations, the United States, is a net exporter of copyrighted goods (movies, books, TV shows, songs, games etc.) while all other TPPA parties are net importers. Furthermore, as a decentralised web of networks, the Internet has provided powerful new distribution models for media content. Established (and also powerful) content publishers feel threatened by these new models because they threaten their control and profits from their copyrighted material. At the behest of the entertainment and IT industries, the United States has tabled proposals that would extend copyright in New Zealand by at least 20 years (from life plus 50 years to life plus 70 years) and possibly more. The copyright term in the Oman-US Trade agreement is 120 years.1

There are many problematic issues around enacting such long copyright terms into an international agreement. Primarily, it would force everyone living in a TPPA signatory country to pay a heavy price in continued royalties for content. One scholar estimated that the copyright extension of the Australia/US Free Trade Agreement (AUSFTA) has resulted in Australians sending an extra $88 million per year in royalties overseas.2  In theory, copyright law is a good thing, giving rights holders exclusive use and profit from their own creative works. In reality, long copyright terms are a poor recipe for compensating creators, who generally receive low royalties from their works. Nor are they needed to incentivise creativity. This is plainly obvious where terms extend past the life of an author. In most cases, copyright law has functioned as a tool of corporations (think Sony, Universal, Warners) in a way that deprives the public of valuable culture and knowledge. In fact, the public domain is a necessary source from which artists and writers can learn and create. It is the source of our shared culture, and it recognises that we are always building on the past. As noted by one commentator, “the more we tie up past works in ownership rights that do not convey a public benefit…. the more we restrict the ability of current creators to build on and expand the cultural contributions of their forbears”.3

Thus copyright limitations and exceptions are a very important part of the picture. Many countries with very well established copyright regimes, including - ironically - the United States, recognise the importance of these and provide for them within their domestic laws. Other TPPA economies must have a similar opportunity to adopt robust limitations and exceptions suitable to the digital age. So far what we have witnessed in New Zealand has not been very encouraging. The 1999-2008 Labour government insisted on a cultural exception to retain some policy leeway after Helen Clark was told she couldn’t introduce compulsory local content because the previous National government had signed away the right to do so at the World Trade Organisation (WTO). The compromise was voluntary quotas and the New Zealand on Air charter. However both of these are now gone. Such protections need significant strengthening to be effective. But the United States moguls and some domestic lobbies, like the Wellington Chamber of Commerce, have opposed any moves in this direction and they are coming under renewed attack now .4

ISPs To Become Internet Police

This obsession with strong copyrighting has resulted in a call for Internet Service Providers (ISPs) to take on a new role - that of Internet police. The TPPA wants service providers to undertake the financial and administrative burdens of becoming copyright cops, serving a maximum copyright agenda while disregarding the consequences for Internet freedom and innovation. They - rather than any court - would determine who are “repeat infringers” of copyright and cut them off from the Internet. Even if only one person is charged with infringement, whole households, workplaces or institutions could be denied their Internet connection based on the IP address that is associated with the charge.

Service providers are the conduits of free expression. By enabling free or low-cost platforms that enable anyone to reach an audience of millions, ISPs have democratised media and enabled innovative ideas to spread quickly - without the gatekeepers of traditional media. ISP enforcement of copyright poses serious threats to free speech on the Internet. Firstly, it makes offering open platforms for user-generated content economically untenable. For example, on an advertisement-supported site, the costs of reviewing each post will generally exceed the revenue obtainable. Even obvious fair uses could become too risky to host, leading to an Internet with only cautious and conservative content. The ISPs will also try to avoid liability through their own clients which could easily lead to abuse of “strikes” on a user’s account.

If governments (in the guise of trade negotiators) wish to deputise ISPs to enforce public policy objectives, the intermediaries must abide by the due process standards that apply to governments. At a minimum, this includes transparency, accountability, accuracy, a timely and affordable means of redress, and fairness and proportionality of cost distribution. The most appropriate role for ISPs should be to forward notices of alleged infringement to their customers, and then allow the judicial system to determine what happens. 5

Moreover, the TPPA insists upon notice and takedown regimes for Websites, meaning that copyright holders would be able to issue orders to receive notification of what was to be posted and to order takedowns if they objected to the postings. This ignores the very essence of Internet communication - the fact that it is time sensitive such as when it involves current or political events. As with the ISPs, it is nearly impossible for Websites that host user content to determine whether all of the materials that are uploaded abide by copyright rules. Takedown requirements would open the door to abuse, allowing the claim of copyright to force immediate removal and trump the judicial system before the merits are assessed. And while “put-back” procedures can mitigate the harm, even a few days of downtime can strike a serious blow to free expression. It’s starting to sound dangerously Chinese.

We’re not the only ones who see this as a threat to Internet freedom. Both the United Nations Special Rapporteur on Freedom of Opinion and Expression and the European Court of Justice agree. 6 In addition, Article 19 of the Universal Declaration of Human Rights, regarding the freedom of opinion and expression should still be the guiding light for TPPA.7  Another very alarming development is the claim of copyright over temporary electronic copies. Temporary copies are files that are automatically copied by computers (into random access memory [RAM], onto a video hardware buffer, etc.) during the course of routine operations. Temporary copying of data is fundamental to how computing works in general, especially on the Internet. For example, online videos are buffered in memory in order to play smoothly; browser cache files are stored in temporary Internet files folders on the hard drive. In short, bringing temporary copies under copyright would prohibit a huge amount of Internet use.8 Critics liken the impact to setting up tollbooths every kilometre of the information superhighway.9

Digital content locks are yet another attempt to censor the Internet. Already, media publishers place locks on digital content with the objective of controlling secondary uses, often in the name of impeding copyright infringement. These restrict what people can and can’t do with the media and hardware they have legitimately purchased. For example, digital locks can be used to prevent e-books from being read on unapproved e-book readers, shared with friends or donated to a library. Proponents of stronger intellectual property enforcement are pushing for provisions that make it more difficult and/or illegal to break the locks on content, even if the end use is lawful. For example, they could strengthen the barriers on smartphones, preventing certain applications from being installed and/or impeding consumer’s ability to switch service providers. If a teacher wants to show a legally acquired film to their students, but can’t because the school’s equipment cannot read the format of the DVD, it would be illegal for them to break the locks to copy the film into a format that could work. It could also prevent the blind and visually impaired from changing content formats so as to make material more accessible, such as freeing the content to use text-to-speech software.10

Threat To Parallel Importing

Parallel imports could be blocked as contravening IP provisions. Parallel importing is the importation of lawfully manufactured items directly from overseas suppliers, rather than through local New Zealand distributors.  It was made lawful by the Copyright Amendment Act 1998. The reintroduction of a ban on parallel imports would particularly affect books and other library materials. At present, other than works published in New Zealand, most works purchased by New Zealand libraries, particularly by tertiary education and research libraries, are imported directly from overseas. Because of the specialist and diverse nature of most of the materials, these are best sourced through overseas library suppliers, who because of the volume of business they receive are able to supply books and other library materials much more cheaply and more speedily than any supplier located in New Zealand could do.  A ban on parallel importing would greatly increase library costs, and New Zealand libraries would no longer have access to the specialist services that overseas suppliers are able to provide.  The result would be fewer purchases by libraries and slower speed of supply. 11

As an isolated nation and a small consumer market, New Zealand is often at the expensive end of pricing. Parallel importing provides genuine price and product competition. Exclusive importing deals would see prices rise across a whole range of consumer items. Many businesses such as Trade Me and The Warehouse – whatever our reservations about these may be - would be severely impacted. The Warehouse has built its entire business on parallel importing.  As its’ Chief Executive Officer Mark Powell noted: “If anything was done in the TPPA to impact (parallel importing), I would see that as a restriction of trade, and I thought TPPA was about freedom of trade”.12 About a quarter of the 20,000 businesses using the Trade Me platform harness parallel importing to source their goods, and offer them at competitive prices to buyers. 13 These businesses are at very least employing Kiwis, providing jobs the country badly needs to retain.

Extending Patents To Software

Another major issue is software patents. In New Zealand software is currently patentable merely because the Patents Act 1953 predated the widespread existence of software, and therefore does not specifically exclude it. In 2010, following submissions from a large number of software developers during the review of the Patents Act, the Commerce Commission Select Committee, recommended unanimously to the then Minister of Commerce, Simon Power, that software be specifically excluded from patentability in the resulting updated Patents Act. He and his successors have publicly supported this recommendation. New Zealand software developers saw this as a huge victory for common sense and for the future of innovation in New Zealand. But despite multi-partisan government support, the Patent Bill with its software patent exclusion has not yet been passed into law. Although the Government has made assurances to the contrary, many in the software industry wonder if the delay in passing the Patents Bill into law is due to the IP chapter in the TPPA being incompatible with a software patent exclusion. 14

It is worth noting that IP claims are infecting other “non-IP” chapters of the TPPA. In fact a lot of the public health concerns relate to pharmaceutical patents blocking access by generic companies to their products, thereby delaying their availability on the market.15 This is part of the plan for undermining Pharmac. It was interesting to hear intellectual property being invoked as the basis of the case for Phillip Morris’ challenge to the New Zealand and Australian governments about their proposals for plain packaging of cigarettes.16In a completely Orwellian turn of events/phrase it seems that even the most corrupt of businesses - in this case Big Tobacco - are able to claim some weird moral ground through claims of IP and copyright.

International Fightback

Not surprisingly, there has been an international backlash against these demands. In New Zealand, this is being led by the Fair Deal Coalition that includes the Internet industry, Consumer, Trade Me, LIANZA (The Library and Information Association of New Zealand) NZOSS (the New Zealand Open Source Society) and the Foundation for the Blind. As Susan Chalmers, policy lead Internet NZ, said as she left for IP-TPPA discussions in Dallas in 2012: “My overall goal is to emphasise to these negotiators that these maximalist copyright laws are inherently suspect for two main reasons. First, they come from only one perspective - that of rights holders. …. the whole of the Internet community, not just one part, should weigh in on their appropriateness… Second, a lot of this language is ancient in Internet terms. The pace of technology far outstrips the pace of legislation. We have to come at this issue from a fresh angle and make copyright laws that work with the Internet, not against it”. 17

As noted at the beginning of the article, the IP provisions of the TPPA carry both the greatest risks and costs for New Zealand. For a Government with such a strong business focus, it has been remarkably slow to run any SWOT analysis (strengths, weaknesses, opportunities and threats) on the TPPA. It is now time to undertake that as any normal business would; weighing the weaknesses and the threats against the strengths and the opportunities. Then, as our elected representatives, the Government must explain to us exactly what these are. As with all of the TPPA chapters, we need to know before it is too late.


  1. Kelsey, Jane. “Secret TPPA negotiations raise several concerns for writers”, NZ Author, Feb/March 2013,  p12
  2. “All Nations lose with TPPA’s expansion of copyright terms”, 8/8/12, Carolina Rossini and Yana Welinder, Electronic Frontier Foundation, available at
  3. Karjala, Dennis S. “Opposing Copyright Extensions”, cited by Rossini and Welinder, ibid.
  4. Kelsey, ibid.
  5. “TPPA creates legal incentives for ISPs to police the Internet. What is the risk?” p2,  24/8/12, Carolina Rossini and Kurt Opsahl, Electronic Frontier Foundation, available at
  6. “The Impact of Trade Agreements on Innovation, Freedom of Expression and Privacy: Internet Service Providers Safe Harbours and Liability”, p4, Electronic Frontier Foundation (EFF) available at
  7. Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers
  8. “Temporary Copies”,  p1, Electronic Frontier Foundation, available at
  9. Kelsey ibid.
  10. “Digital Content Locks”, p2, Electronic Frontier Foundation, available at
  11. “Librarians oppose ban on parallel importing”, press release, 19/7/12, available
  12. Campbell, Gordon “Into the Cave of Dreams”, Werewolf, TPPA Issue, number 30, 28/11/12, available
  13. “TPPA - a dead duck for parallel importing”,  Trade Me, 19/7/12, available
  14. “Software patent exclusion v. TPPA”, NZ Open Source Society,, 16/8/12, available
  15. Campbell, Gordon “The Neutering of Pharmac” Werewolf, TPPA Issue, number 30, available
  16. TVNZ, One News, 18/02/13
  17. “Internet NZ speaks on copyright issues at Dallas TPPA discussions”, Internet NZ press release, 11/5/12, available


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