Dotcomming The TPP

Does what the government is saying inside the TPP contradict its support for Dotcom’s prosecution?
by Gordon Campbell

Want some further evidence that John Key’s right hand doesn’t know what its left hand is doing? For two years, New Zealand has been knee deep in the targeting and extradition of the Internet entrepreneur Kim Dotcom in a never-before-attempted criminal case of contributory copyright infringement, something that always been treated before (even by the US courts) as only a civil offence. Yet inside the Trans Pacific Partnership trade talks, the US is failing – in the face of opposition from a group of countries that include New Zealand – to get support for (a) criminalizing the alleged theft of “trade secrets” and crucially (b) for applying criminal penalties to copyright infringement. How come then, that New Zealand is proceeding with the Dotcom case, when the grounds for his extradition seem a guaranteed lost cause within the free trade climate of the TPP?

The authoritative US World Trade Journal gave the details in this report on July 23:

A U.S. proposal to punish trade secret theft with criminal sanctions is facing growing opposition in the Trans-Pacific Partnership (TPP) negotiations to the point that U.S. business lobbyists are mounting a co-ordinated effort to fight for strong and uniform criminal penalties as demanded by the U.S. government.

So far, the majority of TPP participants has baulked at the idea :

The U.S. has made a TPP proposal on trade secrets that would require countries to have criminal penalties in place to punish the willful misappropriation of proprietary information. The business push on trade secrets, which involves the U.S. Chamber of Commerce, is being launched now because there is increasing reluctance among many TPP countries to adopt or strengthen criminal provisions for trade secret theft. (Emphasis added.)

An uphill battle, evidently:

But even as the [US] Chamber [of Commerce] is asking TPP countries to adopt, at a minimum, “firm commitments” to provide robust trade secret protection, with criminal penalties designed to provide sufficient deterrence, it acknowledges this is a heavy lift.

Should the US now fold its tent and give up on criminalizing the theft of trade secrets within the TPP context? After all, it has – reportedly – already backpedaled away from the very similar criminalisation of copyright infringement measures that it has been touting for the past 18 months as compelling grounds for the extradition of Dotcom by the New Zealand courts :

A business source dismissed the notion that the U.S., in light of these objections, would modify its demands on trade secrets penalties in the same way it softened its stance on applying criminal penalties to copyright infringement in the face of opposition by other TPP countries. (Emphasis added.)

Meaning : it has been a good try by US business interests, but no cigar. Evidently, the unprecedented Dotcom case was supposed to spearhead the US entertainment industry’s efforts to ram similar criminalization measures through the global trading system. That attempt appears to be malfunctioning. The TPP is simply not buying it. Nor are the negotiators who are currently sitting down to bargain on the proposed mega-trade deal between the European Union and the US. The respected Canadian trade analyst Peter Clark reported last month on the starting positions for those negotiations, citing the Beltway trade Bible, Inside US Trade. The pre-conditions include : no investor state provisions (which means that under the EU/US deal, corporates will not be able to sue governments if laws and regulations affect their business) and no criminalisation of copyright infringement. Among the relevant bullet points for the proposed deal:

• Audiovisual issues will be excluded from the Services chapter – but foreign investment is nonetheless welcome in that sector.
• The EU has an interest in maritime transportation and is targeting the Jones Act, an ancient and discriminatory piece of US legislation. [Last December, Werewolf had cited the shipbuilding and coastal crewing provisions of the Jones Act of 1920 as an indefensible US trade barrier. ]

• Europe does not want a NAFTA-type investor-state dispute settlement mechanism.
• The EU will not permit criminal sanctions for Intellectual Property offences – as found in the Anti-Counterfeiting Trade Agreements (ACTA) – to be brought in through the back door. (Emphasis added.]

In that respect, the EU is being entirely consistent. A year ago, the EU chose to reject the criminalisation of copyright infringement by binning the so-called ACTA proposals.

What I’m getting is that Key’s complicity with the criminal prosecution of Dotcom for copyright infringement is completely out of step with the current direction of international trade policy. The criminalising of copyright infringement – on which Dotcom’s extradition hinges – has been rejected within the TPP, rejected last year by the EU when incarnated in the ACTA proposals, and rejected this year by the EU which is treating the matter as one of its main pre-conditions for its trade negotiations with the US. If Key really is in favour of free trade, he’s got a problem here. Because even the leading proponents of global free trade seem to regard the criminalizing of Dotcom and his ilk as entirely unacceptable – and are treating the mounting of a civil case and related penalties as an entirely sufficient deterrent. We should do likewise. Because clearly, the Dotcom case is an outlier – not a precedent – for where the rest of the world is headed on this issue.

Finally, what are the New Zealand courts to make of this attempted prosecution, as a basis for an extradition request ? Surely, New Zealand has entered the TPP negotiations with the same “good faith” that it is required by law to exhibit in the Dotcom extradition proceedings. At the very least, it would seem incumbent on the Supreme Court to inquire what the government’s actual negotiating position on the criminalizing of IP theft, copyright infringement and patent protection has been within the TPP – so that it can be re-assured that the Crown is not arguing in one forum for what it has agreed to reject in another.