Jim Sterling has recently made a video on the Trans-Pacific Partnership (TPP) which is titled, “5 Reasons Why the TPP is Gross and Scary”. After watching his video coverage, I decided to go to the source and investigate the leaked documents, and eventually (since this post took awhile to properly research and write), the actual document myself. Having majored in Political Science in undergrad, I have a deeper background in politics than most video game journalists. While this article isn’t targeted towards Jim Sterling, I do take a lot of his points in mind as I’ve seen similar claims by other content creators. Please keep in mind that I am not a lawyer and my views in this article should NOT be taken as legal advice. If you want information on how the law will truly affect you/ or your company then please consult a practicing lawyer. Now that that’s out of the way, let’s get down to business.
Treaties are NOT Laws
Before I talk about the TPP in particular, I would like to mention that treaties are very different from laws. In order to understand why, you need to realize that the politics within the International sphere is very different from the politics in the state sphere. This is because the international system is anarchical– that is, there is no collective body ruling over all of the states. Before you claim ‘the UN’ (Or if you are old fashioned, the League of Nations) has this power I’d like to remind you that the UN is only as powerful as the countries allow it to be. Without getting too sidetracked from the actual topic on hand, since there is no overarching world government, countries are mostly free to do what they want. They are sometimes bound by obligations, and deals but (most of the time) no one is “forcing” compliance. A lot of treaties are broken all the time because they lack the actual domestic support to pass their countries’ law (See America: League of Nations) or because the state is unable to actually comply with the treaty due to other factors. Of course, signing a treaty and not following through with it could have ramifications (with penalties like tariffs, or just decreasing the amount of trust between two nations). A good is example is North Korea not following through its’ treaty obligations in regards to nuclear weapons and WMDs, which has led other states to not trust it, and enact penalties with regards to restricting aid.
A law is solidified by a governing body. Therefore, if the TPP were to get passed it would need to get approval by the government. In the United States this requires to pass both houses (which sometimes can pass different versions of the same law [See: Affordable Healthcare Act]), and then be signed by the US President. Afterwards, it may be challenged by citizens/ groups and the courts can then decide if it goes against the Constitution. Governments come in all shapes and sizes, so the process for your country may be slightly different. The reason a law is a law is because you have some agency guaranteeing its enactment. Therefore, treaties are NOT laws as there is no overarching government to enforce its compliance.
This is why a lot of the wording in the actual document is vague. For a lot of things, the countries couldn’t expect countries to actually enact those measures and are therefore encouraging the adoption of such policies. Furthermore, negotiations are tricky…and if a country is adamant about not accepting or pushing a policy through it can mean that other participants will leave the table. Keeping provisions vague and optional is beneficial to treaties as they will be more likely to be signed. This brings me to the next topic…
“The Secret Deal”
First off, a common complaint about the TPP is that the negotiations are done completely in secret. This is actually a common practice with not only international laws, but laws in general. There are multiple reasons, but I’d like to highlight the two most important ones. First, the negotiation process is, well…boring for most people. A lot of people can only identify their own state’s Senator or Congressperson (in the United States). Most of the time how the Congressperson/ Senator voted, what they actually contributed to the bill (post campaigning) is rarely mentioned in the news or talked about. Interest groups and lobbyists actually represent an integral part of law-making process. They are formed to protect some interests, and to act on behalf of their beneficiaries. A lot of the time they will even help write proposals which could be eventually brought into law via a vote. Most of the time that interest groups ask people to vote a certain way it is because it affects their interest (“Remember us the dairy farmers before voting for those tariffs!”).
The second reason most negotiations like this don’t get covered has to do with the process itself, and game theory. Game theory is an extremely complex subject within political science so I can’t do it justice here. Basically, game theory is the study of how different scenarios can play out. Most of the time, it’s assumed that the actors in the game are rational, so the “game” can be solved.
Some of the time, it’s not beneficial to have information public. If you know your friend wants the Wario amiibo really bad, then you can charge him an absorbent amount of cash for it. On the flip side, if he said he doesn’t really care about the Wario amiibo, then you might be inclined to charge him less, or at the very least accept less money. This scenario gets extremely complex very quickly as people could lie, or reveal partial information for their own advantage. This is why negotiations are so complex as they are sometimes very delicate. Since everyone is looking out for their own best interest, trying to protect that interest is essential to everyone involved. Having information public may destroy (or even in some cases) create leverage. Since the documents got leaked to Wikileaks, it might indicate someone who has an invested interest was trying to leverage something in the negotiation process. Essentially, secret negotiations are not surprising, and actually should be expected.
About IP Law
I’m not too familiar with IP law, but based on what I understand it’s basically asking the other signatories to raise their limitations to match the United States. In the proposed treaty it discusses the need to create similarities between the patent systems of the signatories. (18-8 and 18-9) This is done so content creators can attain their right to their copyrighted works in multiple regions. Individual countries have an invested interest in seeing this law passed as it allows their industries to be exported abroad easily. America might benefit from the proposal the most due to it’s intense reach in terms of soft power (culture, goods, etc). However, this could help other countries export their own industries to each other too. I know that Japan would like to see its’ media industry and copyrighted works protected in the other Asian countries.
On the user side and the issue of public domain, that is a big debate. Personally, I feel that the author’s life plus 70 years is too long (18-36), and in some ways prohibits expansive technology or works from being created…but that’s a whole other post and argument. The benefit of raising the copyright law is that it allows companies to keep their IPs in tact. If Mickey Mouse enters the public domain, for example, Disney has the potential to lose a lot of money as their character can be used by anyone for anything. Disney merchandise would have to compete with cheap knockoffs, and they would lose their brand identity. It’s kind of cliche to mention Mickey Mouse when discussing IP law (almost everyone talking about TPP has), but he’s probably the more relevant example in this case.
Therefore, I personally take a complicated view of copyright. I feel that some aspects should be raised, but others should not be. Essentially, if the IP is not being actively used then it should be entered into the public domain as quickly as possible. Old video games that are not being remade or used in any tangible way should be released into the general public so modders and fans can utilize the technological innovation that people before them have created. Anyway, that could be a post in the future so I’ll spare further detail for now.
Please note the following text (18-37):
Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled
Therefore, I do not see the TPP as an extension of copyright in America, but rather as an agent that reinforces it and the promotion of its’ ideals to the rest of the world. Admittedly, my knowledge about copyright law is very limited, but I do believe that many online comments about the TPP and copyright have been blown out of proportion.
DRM and Criminal Punishment
As for circumventing DRM, there is actually a lot of misinformation on the possible penalties, and who would be affected by it. If my interpretation of the document is correct, it will not change how DRM is handled today. The relevant section starts off on 18-38 deals with protecting digital rights management and the penalties for breaking it. If entities are not attempting to make profit off breaking DRM, then the law may or may not affect them. Essentially the TPP in this form does not require signatories to penalize non-profit groups (along with several other exceptions including archives and libraries) for breaking DRM (18-39). Instead, it is completely up to the individual country to pass, or not pass such laws. The act of breaking DRM must be willfully done, and with the intent of individual or commercial profit for it to be held liable for damages. The full quote is as follows (18-39):
Each Party shall provide for criminal procedures and penalties to be applied if any person is found to have engaged wilfully and for the purposes of commercial advantage or financial gain in any of the above activities.
A Party may provide that the criminal procedures and penalties do not apply to a nonprofit library, museum, archive, educational institution, or public non-commercial broadcasting entity. A Party may also provide that the remedies provided for in Article 18.74 (Civil and Administrative Procedures and Remedies) do not apply to any of the same entities provided that the above activities are carried out in good faith without knowledge that the conduct is prohibited.
Footnote 83 (18-39) says this outright:
For greater certainty, no Party is required to impose civil or criminal liability under this subparagraph for a person that circumvents any effective technological measure that protects any of the exclusive rights of copyright or related rights in a protected work, performance or phonogram, but does not control access to such that work, performance or phonogram.
If I’m interpreting this correctly, without the legal jumble footnote 83 means: 1. signatories to the TPP are not required to hold DRM breakers liable as long as they don’t break the DRM in order to sell/distribute the content without proper consent from the original content creator or rights holder.
Individual country laws probably go much further than this, and might already. Therefore, in my opinion, it’s somewhat unlikely that the TPP will severely affect data mining activities and modders as this trade deal does not actually go further than laws that are already in place. Selling or distributing content that is owned is already very illegal, and this law doesn’t seem to affect the average Joe-schmo.
The wording on ceasing domains/ shutting down access by ISPs seems to be exclusively targeted towards websites that host illegal content (or perhaps sites that stream). The relevant part begins on 18-58. Therefore the law may decrease the presence, or the ability to access sites that host TV shows, or ROMs.
“Trade Secrets” and Leaks
A trade secret is defined by the TRIPS agreement section 39.2:
2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices (10) so long as such information:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
Therefore a lot of video game leaks would not fall under “trade secrets”. The companies would have to prove it has commercial value in keeping it secret. A trade secret is giving detailed instructions on how FORD makes their cars to another company, or the secret recipe to Coca-Cola. Announcing when the next Nintendo Direct is, or the upcoming release by SONY would probably not have an intrinsic commercial value in its secrecy, at least it might be difficult to prove. In fact the rest of the TPP section on trade secrets deals with protecting information that is on computer systems and satellites (18-56). This is not to say that revealing certain stuff connected to games aren’t illegal. Revealing or sell what the NX is to competitors may be illegal (if not already).
It’s not surprising that there has been a lot of misinformation on the TPP and its relationship to gaming. People tend to blow things out of proportion…especially if they do not fully understand the system that creates these kinds of agreements. For additional information, please check out this amazing video by Super Bunnyhop: “The Trans-Pacific Partnership, Video Games and You!”
Let me know in the comments if I’ve misrepresented something, or if you have additional questions. Also, do you enjoy this type of article? I’ve been thinking about doing a series of articles on video game censorship and violent video game legislation debate.