This article is a part of a series on the Our Digital Future report, our crowdsourced roadmap for Free Expression that proposes fair and balanced copyright reform for the 21st Century. See Part 1 here.
Put on your glasses, nerds, it’s gonna be a wild ride.
A new leaked draft of the Trans-Pacific Partnership’s (TPP) Intellectual Property chapter was released by Wikileaks late last week, and although the provisions change from leak to leak, this one confirms our greatest fears: it’s still going to censor our Internet.
This is despite the fact that citizens’ advocacy groups have been painfully clear about the fact that Internet users would like to see the more restrictive conditions revisited — like extending copyright terms to stretch almost two lifetimes — and for proposals amounting to Internet censorship to be removed entirely.
At first glance, it’s easy to miss the connection between copyright laws and censorship — how could something that was designed to protect the original owner of a creation be abused in order to prevent Internet users from posting and accessing the information that they want online?
Without leading us too far down a technical rabbit-hole, the template for Internet censorship as we know it comes from overzealous enforcement regimes — like the Digital Millenium Copyright Act found in the U.S. — that require Internet Service Providers (ISPs) to remove content that has been flagged as purportedly containing copyright-infringing material.
The problem with these systems is that they lack a layer of judicial oversight between the copyright holder and the ISP that would allow for verification of the copyright infringement. All this is to say that if a copyright holder sends a notice to an ISP requesting the takedown of allegedly infringing material — it will be taken down. No judge, no jury, no due process.
The proof is in the pudding — and this pudding leaves a bitter aftertaste. (See volunteer and community-member Cynthia Khoo’s blog about how copyright is most commonly used to censor online content.)
The true problem with this system — called notice-and-takedown — is that despite robust criticism it is being pushed aggressively the United States Trade Representative as the most effective method of preventing copyright infringement, and would become the defacto model for all 12 signatories to the TPP. Not only are they pushing other countries to comply with their rules — but they’re also receiving heavy pushback from other nations — most notably Canada.
Intellectual Property expert, Michael Geist, highlighted in his blog last week that Canada’s resistance to U.S. pressure on copyright reform is important, because Canadians have fought hard to design and implement a more flexible set of rules – known as notice-and-notice.
Under this system, ISPs are given notice from a copyright holder about allegedly infringing material, and instead of removing or blocking the content themselves, the ISPs pass along the notice to the subscriber. As we noted in the Our Digital Future report, the effectiveness of the notice-and-notice system is reason alone to implement it — over half of alleged infringers do not repeat-infringe after one notice, and over 80 percent cease the allegedy-infringing activity after two.
There has been some indication in the leaked negotiating texts that exceptions will be made for countries with existing frameworks — like Canada — but we are left wondering where that will leave many other nations, who perhaps do not have as strong of a negotiating position. Will they be relegated to the repressive notice-and-takedown system, when experts worldwide are criticizing its unwillingness to include provisions that prioritize free expression.
The results of the Our Digital Future survey were clear: respondents from 155 countries overwhelmingly chose “prioritizing free expression” as their top priority when making rules regarding copyright, and we’re working at OpenMedia to make sure that becomes a reality.
Far from simply ensuring fair enforcement of copyright laws, prioritizing free expression means working to ensure four key criteria are met:
- Preventing censorship;
- Protecting fair use and or fair dealing;
- Promoting access and affordability; and
- Creating clear and simple rules to govern the sharing of knowledge and culture online
As Jeff S. from the U.S. shared with us when he went Face-to-Face with Internet Censorship in the TPP:
“This sounds like more corporate welfare: a handout to protect [Big Media’s] bottom line, while sticking it to every day people. Protecting corporate media conglomerates while stifling creativity is never a good thing for a society. Governments and corporations are both supposed to serve people. Not the other way around.”
Head on down to www.OpenMedia.org/DigitalFuture to see more about how we can make the Internet a more inclusive platform for Our Digital Future.
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