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The Trans Pacific Partnership IP Chapter Leaks: The Battle Over Internet Service Provider Liability

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Thursday November 14, 2013
The leak of the Trans Pacific Partnership intellectual property chapter generated global coverage as full access to the proposed text provided a wake-up call on U.S. demands and the clear opposition from many TPP countries. My first post highlighted Canada's opposition to many U.S. proposals, but nowhere is that more evident than in the section on Internet service provider liability. In fact, ISP liability in the TPP is shaping up to be a battle between Canada and the U.S., with countries lining up either in favour of a general notification obligation (Canada) or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking (U.S.).

The Canadian approach, which enjoys support from Chile, Brunei, New Zealand, Malaysia, Vietnam, Singapore, and Mexico, establishes a general obligation to limit liability for ISPs for infringements that occur on their networks (the U.S. and Australia oppose this approach, Japan and Peru are undecided). The Canadian proposal includes more detailed descriptions of the limitations of liability, an exclusion for services primarily for enabling infringement, and a reminder that ISP liability is still subject to copyright limitations and exceptions. Under the Canadian model, ISP limitation of liability is conditioned on creating a notification process and "legal incentives for ISPs to comply with these procedures or remedies against ISPs that fail to comply." 

The U.S. proposal, which enjoys support from Australia (and support for some provisions from Singapore, New Zealand, and Peru) features far more conditions for ISP limitation of liability that could lead to subscriber service termination and content blocking (Canada, Brunei, Vietnam, and Mexico oppose the approach). Under the U.S. model, specific actions are required for specific limitations of liability. For example, a limitation of liability for automated caching is subject to four requirements, including "removing or disabling access, on receipt of an effective notification of claimed infringement, to cached material that has been removed or access to which has been disabled at the originating site." Limitation of liability for network storage or linking users to online sites are also subject to compliance with notifications.

However, all forms of ISP limitations of liability are subject to several additional conditions (which Malaysia and New Zealand oppose):

  • adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers
  • accommodating and not interfering with standard technical measures accepted in the Party's territory that protect and identify copyrighted material, that are developed through an open, voluntary process by a broad consensus of interested parties, that are available on reasonable and nondiscriminatory terms, and that do not impose substantial costs on service providers or substantial burdens on their systems or networks.

In other words - subscriber termination and content blocking. Moreover, ISPs could be required to monitor their networks and seek out information on infringing activity if consistent with these technical measures.

The U.S. approach also requires a privacy override. While Canadian privacy law has established protections on disclosure of subscriber information, the U.S. model would require:

Each Party shall establish an administrative or judicial procedure enabling copyright owners who have given effective notification of claimed infringement to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.

On top of all this, the U.S. is seeking an annex to the chapter that specifies the requirements for effective notices. They are supported by Australia and Singapore.  Opposition comes from Canada, Chile, Malaysia, New Zealand, Vietnam, Brunei, Mexico, and Peru.

From a Canadian perspective, the U.S. demands would require an overhaul of Canadian copyright law and potential changes to privacy law.  For many other TPP countries, the issue is creating a clear divide, with the U.S. conditioning ISP safe harbours on subscriber termination and content blocking, while the Canadian model favours greater flexiblity in establishing systems that create incentives to address alleged infringements online.
Comments (11)add comment

Insanity Now said:

This is crazy - grow a spine, Canada...
Why are we getting involved in this again? What exactly is wrong with current laws? Why are we losing autonomy to the demands of foreign states who are controlled by psychopath-corporations?

I say we sit this one out - as a nation, we hold so much power in that we control huge amounts of natural resources. We should leverage this fact and run our country as a truly sovereign nation. Don't like it? Too bad. Want our oil/water/wood/minerals..? Then deal.

Also, why are these negotiations secret? Why shouldn't every single thing discussed here by our elected officials be open to constant public debate/discourse. FAR to many special interest groups in play here IMHO.
November 14, 2013

Sanity Now said:

Sanity Now
I prefer to still be a part of a global economy. I am really glad this information was leaked. IMO we are getting an inside look at who is successfully being lobbied compared to those looking out for their own citizens.
November 14, 2013

Bruno said:

Push back
You can add your name to Open Media's campaign against the TPP here:

http://openmedia.org/censorship
November 14, 2013

kevin said:

Good
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November 16, 2013

Techywebb said:

Loss of Fredom of speach
For those who think this is a great idea and should be done think again. As both a PC tech and Internet tech I know I can drive up to your house and get on your wireless connection which is your internet. Download some banned content that the TPP rules are being forced on the public a few times and I could get your internet removed. Because allot of people don't know how to secure their wireless and it is difficult to prove it wasn't thier own usage by how the TPP is being setup I see allot of cases of people loosing their internet without knowing why. How many times have I watched Doctor who on TV over it's 50 years yet when I go to the BBC website I am restricted from the content I already watch on TV. Heck if the TPP rules are to be enforced then that means all countries are in violation right away because we have used VCR's for years. This looks like the Canadian long gun registry to me and I say NO to TPP.
December 05, 2013

sanity check said:

This ois insane
Canada GROW A SPINE!!!!!!!
This is insane. It has been unthought by schizophrenic paranoids who wish to practice their police state practices in other nations as well. It seems that it is not sufficient to illegally spy on their own citizens, and foreign nationals as well, they pull of this shit. And they try to enforce this nonsense on other nations as well.
No one who is sane would even think of this insanity.
I say no to TPP
December 05, 2013

Paul said:

...
Democracy is dying a slow painful death in the very countries that used to once be a beacon for it. It is shameful. The reasoning of "have nothing to hide you have nothing to fear." is total garbage. The possibility of daily monitoring by an is on behalf a democratic government is not democracy in action. It is the actions I would expect from a third world country ruled by the likes of hussein or ghadafi. Instead now it is being headed by Harper and Obama. Where will it lead. I don't know as history is written by the Victor.
March 20, 2014

pat riot said:

...
Revolution takes many forms...WE CAN NOT AND SHOULD NOT LET THE GOVERNMENT CONTROL US ANY FURTHER.
April 24, 2014

Human said:

What about Parliamentary debate?
These changes seem very grand and sweeping. Under what authority are governments allowed to sign law without open public debate and parliamentary oversight?
April 24, 2014

Howard M Greenebaum said:

author and newspaper columnist
TPP is simply an effort by corporations to eliminate regulations, push incentives to outsource our jobs, and make corporations rule over our governments. TPP is garbage and must be stopped.Americans should demand that Obama be impeached for providing SECRECY over trade deals that will remove all regulations that protect our air, water,and soil. Obama is betraying us. It is time to remove this traitor.
April 24, 2014

Trevor Goodger-Hill said:

Citizen of the World
If the U.S. government can allow the World Trade Centre to be demolished by controlled demolition -- Building #7 came down after five in the evening in free fall speed after never being hit by a aeroplane -- and the reptile press lies about it to us, eliminating the power of governments and the owning class will be our only salvation.
April 24, 2014

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