Longer copyright terms, stiffer copyright penalties coming, thanks to TPP and ACTA…

by Stephan Kinsella on October 13, 2013

Libertarians and Internet-freedom advocates cheered when we defeated SOPA and PIPA—the attempt by the US government to limit Internet freedom in the name of protecting the insidious, false property right known as “copyright”.¹

But did we really defeat it? Soon after, similar provisions popped up in other international agreements being negotiated like the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP), as discussed in the latest This Week in Law. (I’ve talked about it previously, in my post SOPA II? Obama’s Transatlantic Trade and Investment Partnership.)

Concern over ACTA abated when some countries bowed out, but as Professor Michael Geist explains in the afore-linked episode of TWiL, it still might be passed. And even if it’s not, the TPP is being negotiated in secret and is rolling ahead full-steam. It seems like it will be ratified by year-end by a number of countries. This is being billed as an attempt to “harmonize” free trade laws, but as Geist says, it’s more like an attempt to “Americanize” by imposing US-style copyright terms and penalties (such as our insane, draconian statutory damages) on other countries.

As an example, the Berne Convention requires member states to have a minimum copyright term of life of the author plus 50 years; the US has added 20 years to this (life plus 70), and now seeks to twist the arms of other countries, via the TPP, to adopt this term.² If you want the benefits of free trade with us, you need to put people in jail for “pirating” our Hollywood cronies’ movies, see?

This is just another act of IP Imperialism that the US is so known for. I fear they will get away with this, and maybe even ACTA. SOPA is not really dead after all, I guess.

Update: Cato inexplicably has come out in favor of the TPP, despite its horrible copyright fascism, without a mention of this aspect. See Cato’s article The Transatlantic Trade and Investment Partnership: A Roadmap for Success. Now, I’ve myself endorsed multilateral trade agreements before, in the past (“An International Framework for the Protection of Investment,” Philadelphia Lawyer, p. 20 (Fall 1997)), but we cannot support an increase in IP protection as the price to pay for increased free trade. Not a fair trade.

See Glynn Moody on techdirt: TPP IP Chapter Leaked, Confirming It’s Worse Than ACTA

Update: From one of my Facebook posts:

I’ve mentioned before that Cato scholars have inexplicably come out in FAVOR of the horrendous, fascist, IP-pushing TPP, in an article by Daniel Ikenson.

People have told me that just b/c they have one scholar in favor of something does not mean it’s an institutional position. MMhhmm.

Check out this Democracy Now “debate” about the TPP, between Bill Watson, a trade policy analyst at the Cato Institute, and Lori Wallach, director of Public Citizen’s Global Trade Watch. (TPP Exposed: WikiLeaks Publishes Secret Trade Text to Rewrite Copyright Laws, Limit Internet Freedom) Now what is disheartening for the libertarian listening to this debate (which starts around 11:00) is that almost everything Wallach says is correct and on the libertarian side. She notes that the TPP is not about free trade at all; only a small number of its (still secret) chapters even purport to deal with free trade; the major portion leaked so far is on IP and is pure American company special interest rent-seeking: attempting to lock stronger and longer copyright and patent law into US law via treaty and to export it to the rest of the world; that is, to increase the monopoly privilege of patent and copyright, to reduce internet and artistic freedom, to increase the prices of pharmaceuticals, etc. She is 100% correct to oppose the TPP on her anti-IP grounds, and she is right to condemn patent and copyright as monopolies that benefit special interests and harm the public and consumers.

Inexplicably, Cato’s Bill Watson defends the TPP and fast track even though he seems to agree with Wallach that the IP chapter is “problematic” (he nowhere seems to condemn it as monopoly and bad, in as clear terms as she does, however).

Utterly bizarre, when we true free-trade, anti-IP libertarians, find more in common with “Public Citizen’s Global Trade Watch” than with an allegedly free-trade, libertarian organization.

People often tell me that I should not harp on IP so much, or make it a litmus test; that even if I am right about IP, reasonable libertarians can disagree. Well this is an example of why it’s important to get this very important issue right. It is in fact one of the most important libertarian issues (https://c4sif.org/2012/03/2012/01/where-does-ip-rank-among-the-worst-state-laws/), and getting this issue wrong leads people to error on other important issues. As an example, a few years back, several Cato scholars explicitly opposed free trade in drug reimportation in the name of upholding American companies’ pharmaceutical patent monopoly pricing model; unbelievable (see footnote 1 https://c4sif.org/2011/09/objectivist-worried-obamacare-may-weaken-patent-rights/#footnote_1_2629; footnote 4 of https://c4sif.org/2011/08/pro-ip-libertarians-upset-about-ftc-poaching-patent-turf/#footnote_3_2434).

Cato’s forums on IP are invariably about IP reform. Only one time can I remember someone for IP abolition, which was Tom Bell, and that (IIRC) only on the issue of copyright (not patent). Their former scholar Tom Palmer was one of the early IP abolitionists but his work was never highlighted there and indeed he seemed to backpeddle a bit in later years on pharmaceutical patents (as mentioned here: see: http://tomgpalmer.com/2005/09/19/alive-thanks-to-pharmaceutical-profits/#comment-3642 and http://tomgpalmer.com/2005/06/10/healthy-profits-to-help-sick-people/#comment-2619 )

One wonders if Cato has lots of pro-patent big business/big pharma donors, and the quasi/former Objectivists in their ranks (https://c4sif.org/2012/08/does-catos-new-objectivist-ceo-john-allison-presage-retrogression-on-ip/) which leads them to continually favor IP and downplay the IP abolition case.

Sad when libertarian groups are bad on this issue (https://c4sif.org/2013/09/canadas-free-market-fraser-institute-urges-strengthen-intellectual-property-law/). It’s as bad as being bad on taxes, slavery, free trade, the drug war. Down with IP.