The investor-state dispute settlement (ISDS) mechanism in trade and investment treaties poses specific problems for digital rights and culture, as corporations could challenge laws about inter alia copyright, open-source software and privacy issues.
The Trans-Pacific Partnership’s (TPP) chapter on intellectual property promotes the interests of rights-holding corporations at the expense of the public. Copyright terms will be extended, even if they concern wider non-commercial use of copyrighted content for the creation of a new piece. Such uses for parody, remix, fan fiction, review & commentary could then be prohibited. Big media corporations could control what the public could and could not share online, constraining freedom of expression.
Someone tinkering with a file or device that contains a copyrighted work could be made liable (criminally so, if willfulness and a commercial motive can be shown) for doing so, even when no copyright infringement is committed. And if a TPP state softened such rule at national level, it could face an ISDS dispute.
Data flows over the Internet follows the same logic. Personal data transfers across countries can be used for e-commerce or mass surveillance programmes. In Europe, the transatlantic Safe Harbour Agreement let American companies transfer personal data to the US, without enough safeguard for EU citizens’ privacy. However the Court of Justice of the European Union ruled it invalid in October 2015. It could be replaced by the “Privacy Shield”, a European Commission proposition that would not in fact guarantee privacy and security, according to civil society groups.
The TPP encourages parties to promote compatibility between privacy regimes. Thus countries with comprehensive personal data protection laws should treat the weaker regulations of other countries as equivalent to their own in order to facilitate the exchange of data across borders.
But if national public authorities suspended personal data transfers to foreign countries otherwise allowed in international investment agreements, foreign investors could easily initiate a dispute under the ISDS mechanism.
Further, the TPP and the Trade in Services Agreement’s (TiSA) leaked chapter on e-commerce prohibit any party to the agreement from requiring the source code of mass-market software to be released openly by service providers of another party. The production, development and distribution of free-access open-source software would then be significantly weakened. This could also keep countries from addressing software security incidents for which access to the source code of the software is required.
With new generation trade deals, any national law enforcing the right to privacy, open-source software and artistic creation could trigger a dispute under the ISDS rules. These issues could become increasingly abundant in the near future, due to the growing use of digital contents and the Internet.