Today, the Wikimedia Foundation supports the Fair Deal coalition in voicing opposition to certain provisions of the Trans-Pacific Partnership (TPP), a trade agreement that is being secretly negotiated by 12 countries. We have signed onto two letters that focus on two proposals that would be particularly harmful to the Wikimedia movement. The first proposal would extend copyright terms well beyond previously-agreed periods, and the other would expand liability for Internet service providers beyond the standards set out in the U.S. Digital Millenium Copyright Act (DMCA) or in other countries’ copyright laws. As a host of other organizations and technology innovators have pointed out, these proposals have dangerous implications for free knowledge, online privacy, and freedom of expression. The Wikimedia Foundation is particularly compelled to act because these proposals threaten our mission of distributing free and public domain content to all people.
The first provision in question seeks to extend the copyright term in signatory countries far beyond what is required by previous international agreements such as the Berne Convention or the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TPP would extend copyright terms from the lifetime of the creator plus 50 years to lifetime plus 70 years. On average, this means that a work could only enter the public domain after almost 140 years. Although proponents of copyright term extension commonly argue that such restrictive monopoly rights provide an incentive for creators to generate material, economists and legal scholars have found that the benefits of such term extensions accrue overwhelmingly to copyright holding companies rather than to the artists themselves. Extended copyright terms also result in works becoming unavailable altogether – or “orphaned” – because the copyright owner cannot be contacted or is uninterested in commercializing their work. This erosion of the public domain would weaken Wikipedia and all Wikimedia projects that build on a rich public domain.
The second provision calls for an expansion of intermediary liability for Internet service providers. This means that under the TPP, Internet service providers would be required to privately enforce copyright protection rules over their users. ISPs would also have to adopt stricter notice-and-takedown procedures — dubbed “notice-and-staydown” — enabling copyright owners to insist that material be removed from the Internet. The result is that ISPs would be forced to become “copyright cops” by policing their users’ actions on the Internet, passing on automated takedown notices, even disconnecting users or blocking websites like Wikipedia. Critics have called such proposals a form of censorship-by-proxy that imperils free expression and innovation. We know that irresponsible rightsholders already abuse the notice-and-takedown system with automated or invalid claims; the TPP’s heightened liability regime would further burden the Wikimedia Foundation and put it at greater legal risk for even legitimate online activity.
As currently drafted, the TPP would rewrite global copyright rules in ways that threaten the Wikimedia community. The Wikimedia community has demonstrated its opposition in the past to harmful copyright laws like SOPA and PIPA that sought to restrict people’s ability to freely access and share knowledge. We expect Wikimedians will not take new efforts to impose restrictions on knowledge lightly. For this reason, we support the Fair Deal coalition in encouraging TPP negotiators to reject any proposals that so threaten our digital rights.
Joseph Jung, Legal Intern
Luis Villa, Deputy General Counsel
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