TPP's 'digital locks' provision could criminalise people viewing legal content — InternetNZ

The Trans-Pacific partnership's 'digital locks' provision could criminalise people viewing legal content, InternetNZ says.

InternetNZ chief executive Jordan Carter and issues adviser James Ting-Edwards appeared today before Parliament’s foreign affairs, defence and trade committee as it conducts its examination of the controversial trade deal.

“We made four key points to the committee,” Mr Carter says.

“First, the longer copyright term required by the agreement is not in New Zealand’s interests. The 20-year extension to the duration of copyright will cost the country more than the gains it might offer to a few New Zealand creators." (The cost was put at $55 million during TPP negotiations. However, an economist recently discovered a decimal point error had inflated that figure by tens of millions of dollars. The company that did the research for the Ministry of Business has now gone bust.)

“Second, the criminalisation of breaches of digital locks – so-called technological protection measures or TPMs – by ordinary users of technology marks a far-reaching change. For the first time, people who open these locks just to access a movie, song, or book will risk legal liability – even if they have the right to view the underlying content. These legal risks threaten innovation and inhibit competition. To make this system work, New Zealand will have to make extensive and clever use of the allowed exceptions – and will have to update those exceptions regularly," Mr Carter says.

“Third, the negatives in the agreement mentioned above can be balanced by the agreement’s openness to a more expansive fair-use exemption, something New Zealand should seriously contemplate. Such an exemption should be built into our copyright law at the same time as the other changes required by the TPP – or if not, very soon afterward." 

Mr Ting-Edwards qualifies that while the TPP requires civil liability for opening access to TPMs, a footnote means New Zealand and other signatories can exclude criminal liability (and Commerce Minister Paul Goldsmith has already indicated that accessing region-blocked DVDs will be exempted and not a crime).

“Fourth, we explained that trade agreements negotiated in secret are not the right place to determine internet policy. Internet policy is best made in an open, transparent environment where all the relevant expertise, interests and views are in the room together, hashing out durable and workable solutions. Future trade negotiations should not deal with Internet policy issues."

It wasn't all bad news, however. Mr Carter also compliments the New Zealand negotiators for ensuring the final agreement did far less harm to the internet than earlier drafts threatened.

“New Zealand had a progressive and sensible stance in the negotiations and stuck to its position with tenacity. Negotiators worked with colleagues from other TPP countries to make sure that the more outrageous demands made by the US were not accepted," he says.

Timeline slashed
The TPP was signed in Auckland on February 4 but still needs to be ratified by lawmakers in countries representing 85% of the GDP or the original signatory countries before it can come into force. 

Here, opposition parties have complained the time MPs have to consider submissions has been slashed from a month to five days, calling it an attack on democracy.

But it is the US, where a TPP ratification vote will likely not take place until December or later, that is emerging as a likely sticking point. 

The 85% GDP rule means if the US Congress votes against the TPP, or a pro-TPP vote is vetoed by an incoming president (and Trump, Cruz, Clinton and Sanders all militantly oppose the trade deal), the Trans-Pacific Partnership will not come into effect.

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