In early November, the "final text" of the TPP was finally released. The USTR even posted the thing to Medium, pretending that after years of secrecy it was now being transparent. As we've been told time and time again, the final document is not open to any changes. The only thing left to do was a "legal scrub" which is a final process in which the lawyers comb through the document word by word, basically to make sure there are no typos or out-and-out errors. The legal scrub is not when any substantial changes can be made.
And yet... the eagle eyed Jeremy Malcolm over at EFF has spotted an apparent change in the "legal scrub" of the Intellectual Property chapter that will massively expand criminal penalties for copyright infringing activities that have no impact on the actual market. Technically, the scrub just changed the word "paragraph" to "subparagraph" in the following sentence:
With regard to copyright and related rights piracy provided for under paragraph 1, a Party may limit application of this subparagraph to the cases in which there is an impact on the right holder’s ability to exploit the work, performance or phonogram in the market.
But the impact is massive. As Malcolm explains:
What does this surreptitious change from “paragraph” to “subparagraph” mean? Well, in its original form the provision exempted a country from making available any of the criminal procedures and penalties listed above, except in circumstances where there was an impact on the copyright holder's ability to exploit their work in the market.
In its revised form, the only criminal provision that a country is exempted from applying in those circumstances is the one to which the footnote is attached—namely, the ex officio action provision. Which means, under this amendment, all of the other criminal procedures and penalties must be available even if the infringement has absolutely no impact on the right holder's ability to exploit their work in the market. The only enforcement provision that countries have the flexibility to withhold in such cases is the authority