Maria Sutton, a Global Policy Analyst at the Electronic Foundation of The Huffington Post warns us of the dangers to our freedoms lurking in the secret trade agreement being negotiated between 12 pacific nations, known as the Trans-Pacific Partnership, in her important article, What the Top-Secret TPP Talks Mean for the Future of the Internet and Democracy.
Sutton's theory is that TPP, seems like an international version of the ALEC organization which gives powerful corporate lobbyist a secret process, out of sight, and beyond the influence of the public, so they can "capture the democratic process from the public."
Maria Sutton complains that secrecy is so tight we only have an occasional glimpse of the topics being discuss, from occasional leaks. Only after the agreement has been reached it is presented to the public. Sutton warns us that unless there is plenty of time for public participation and revisions, which do not seem to be planned in this process, we are vulnerable to have major multinational corporations "capture the democratic process from the public."
Sutton warns that one of the "most alarming" leaks about the TPP has to do with "extreme copyright enforcement provisions that could lead to users getting censored, fined, and even jailed over completely reasonable activities such as remixing and sharing content for non-commercial purposes." Sutton uses the Canadia's more progressive "notice and notice" copyright law as an example of how a nation would have to replace their domestic law with the more draconian "notice and take down," system corporate lobbyists have passed in other countries.
If this trade agreement is reached, passed, and signed, it overrides any nation's local laws and requires signatory countries to revise our domestic laws to be consistent with the international treaty. "While the public is completely denied access to the draft agreement, copyright lobbyists can influence its text and even see the draft language by participating in special advisory committees."
It included copyright lengths that would last over 140 years, increasingly locking up our culture and making it illegal to access and remix. It revealed some countries' proposals on digital rights management (DRM), which are restrictions on devices and content so manufacturers can control what users can do even after they've bought them. It also had laws that would force Internet service providers and online services to spy on and police their users for copyright infringement. Under such policies, users can have their content removed or blocked, or even have their accounts suspended without so much a judge determining whether what they've done was illegal.
In 2012, Canada passed its latest copyright reform bill, the Copyright Modernization Act (Bill C-11). While it had some glaring issues, some aspects of this bill were very fair and balanced to Internet users. Notably, it contained a law to ensure that Canadians would not have their creative works taken down or their identity disclosed to copyright holders without a judge overseeing the process. It's a system called notice-and-notice. It means that a copyright holder sends a notice to an Internet service provider or website that a certain user is engaged in infringing activity, and then the ISP or the online service sends along a notice on to the user. Studies have shown that it is a very effective system to discourage copyright infringement online. Unfortunately, this system is still a legal anomaly in the world.
In other countries, if ISPs and websites get a notice from a copyright holder, they are obligated to remove users' works or shut down their accounts to ensure that they won't be held legally liable for their users' activities. This is called notice-and-takedown, and this system has continued to force millions of URLs, videos, photos, and other creative works to be censored from the Internet, whether or not it was actually illegal. The United States, along with other countries that already have it, are pushing for the more restrictive notice-and-takedown system in TPP. Based upon the leak of the draft last year, we found that Canada, along with other nations, is instead pushing for language that would allow them to continue with the notice-and-notice system.
Since by the "traditions" of negotiating international law" all negotiations are kept secret our only hope of maintain our democratic rights of public participation is to keep alert, and be prepared to demand transparent processes to allow the public plenty of time and opportunity to learn what this trade agreement contains, with public hearing that allow us the opportunity to make changes.
Sutton has convinced me this is an important issue and to the extent her descriptions of this process, with corporate lobbyists having access to the drafts and the ability to propose the exact language they prefer by being on special advisory committees, this does not sound like the best democratic process by which to negotiate these kinds of treaties.
My only criticism of this article is that is leaves feeling alarmed and unsettled without a sense of any action steps I could take except for perhaps writing my congresspeople not to pass this treaty too quickly. She's convinced me that the benefit of the doubt goes to opposing it until convinced it is good. But writing congress to oppose a treaty before we know for sure what it contains would be an awkward position to be in.
Apparently, the U.S. already has the draconian "notice and take down law." What happens if we write articles describing the insidious dealing of the Koch brothers passed on their brochures and their aggressive lawyers send letters to Google, or internet providers, and Daily Kos that we are copyright violators and demanding our accounts be shut down?
Could the NSA use the same tactic to shut down an investigative journalist like Marcy Wheeler, or our own Bobswern. Or really nearly any "inconvenient blogger" here. How would you even fight back if your internet account is shut down, with our "notice and take down law.? Wouldn't this be a violation of due process? Is that section of our constitution even have any meaning any more, or have we inadvertently overridden it?