Digital rights & culture

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.

(February 2016)

Electronic Frontier Foundation | 17-May-2017
There has also been no official release of the chapters and textual proposals related to rules that are being tabled.
Spicy IP | 9-Sep-2016
The latest round of RCEP talks paints a worrisome picture for the global south, given that it will bring 3.5 billion people and 12% of world trade into its fold.
Le Devoir | 7-Jun-2016
Les négociateurs canadiens ont donné de grands avantages aux multinationales du Web, ce qui risque d’avoir des conséquences fâcheuses sur notre production et de limiter la diversité culturelle.
FFII | 2-May-2016
In case the EU would strongly act to protect our personal data, Canadian financial institutions would be able to exploit the textual shortcomings using CETA’s investor-to-state dispute settlement (ISDS) mechanism.
SUNS | 19-Apr-2016
Trade envoys of the United States, the European Union, and Australia among others decided to accelerate negotiations towards a plurilateral deal called the Trade in Services Agreement (TISA) by the end of this year.
EurActiv | 10-Mar-2016
Progress was made in the latest round of TTIP talks, but negotiators have a long way to go if the deal is to be signed before Barack Obama leaves office.
Ars Technica | 25-Feb-2016
Browser maker Mozilla, digital rights group Electronic Frontier Foundation, and Creative Commons have called for more openness in global trade agreements.
Servindi | 9-Nov-2015
La democracia burguesa en la época neoliberal se transforma cada día más en abierta dictadura de las grandes empresas transnacionales, por encima de los estados y de los gobiernos.
Vrijschrift Blog | 2-Nov-2015
The Court of Justice of the EU should assess whether the trade agreement with Singapore is compatible with the EU Treaties and Charter of fundamental rights before it enters into force.
Abdel en vrai | 19-Oct-2015
Le traité transatlantique aura un effet catastrophique sur notre santé, parlez en autour de vous.

0 | 10