The Hollywood studios have been fighting for several years to get the ISPs to do their dirty work. Will they succeed in the TPP?

 The Trans-pacific Partnership (TPP) is the battleground for the next stage in the Internet wars, if the text that has just leaked is correct. In it is a toxic potion that would force the Internet Service Providers (ISPs) to police their networks, and turns current law on its head. This potion is subject to a fight between the USA and Australia – who have concocted it – and Canada who won’t swallow  it. 

 Where it concerns the Internet and digital content, much of the TPP intellectual property chapter looks like a cut-and-paste from ACTA. Certainly,  it brings in similar secondary liability and criminal measures that were in ACTA. However, there are specific new proposals that give more reasons for concern.

 Within the Internet section, is a  USA / Australian proposal that contains the  core  desires of Hollywood and the Motion Picture Association (MPAA).  The MPAA has campaigned for ‘practical secondary liability’ to be imposed on the ISPs, and this is consistent through various sources ( see my book A Copyright Masquerade).  It’s what they tried to do with the EU Telecoms Package, as well as in ACTA and in SOPA. It is Hollywood’s Holy Grail for online copyright enforcement.

 In the TPP Internet section, the US government  seeks to give  the ISPs the primary responsibility for removing copyrighted content from the Internet. The text suggests a variety of methods.

 Notably, it calls for disconnection of users (termination of Internet accounts), blocking and disabling of content, and even some level of  monitoring obligation. The US / Australian proposal seeks to include search engines, linking sites and (my interpretation) even cloud computing services within its ambit.

 The US/ Australian proposal includes  a  ‘voluntary’ notice and take-down scheme, with fairly loose requirements for the copyright industries to fulfil. The stick to make sure they do it, is that ISPs would  only be exempt from liability for copyright infringement if they comply.

 There is even a sentence, redolent of that footnote in ACTA ( those who followed ACTA closely will know the footnote I mean and if you don’t know it, it’s in my book  A Copyright Masquerade  )  which states that exemption will be conditional on  the ISP “adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers”.

 It sounds to me like a description of a 3 strikes regime.

 The US/Australian proposal  extends the current law to include caching. It additionally includes some new  provisions  that I have never seen before.  I am wondering what is meant by the blocking of ‘non-domestic online locations’  - does this mean that business access  could be blocked? And there’s  a new concept of  ‘users who have met conditions’ – what conditions? .

 However, this proposal is not yet final. The Canadians oppose it, and Canada seems to be joined at least partically by an assortment that includes Mexico and Malaysia.

 Canada seems to be seeking an EU-like set of measures, that would give the ISPS a universal exemption from liability, but with a statutory requirement for them to comply with takedown requests. This would  encompass mere conduit  and exempts caching.

 And of course, the United States was forced to back down over  this issue in ACTA – see my book A Copyright Masquerade   for the full story. At stake here is whether Canada can muster the support  for a  repeat.


More analysis from Michael Geist 

 This is an original article from and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to Media and Academics – please cite as Monica Horten, 2013,  The Trans-pacific Partnership (TPP) and Hollywood’s Holy Grail in  14 November 2013. Commercial users - please contact me.