> Each Party shall provide that a violation of a measure implementing this paragraph is independent of any infringement that might occur under the Party’s law on copyright and related rights.

(See Article QQ.G.10: {Technological Protection Measures}). Same usual nasty stuff which mirrors DMCA-1201.

The worst part is, that this stuff in TPP will make it much harder to repeal DMCA-1201 or to decrease copyright term in US, since DRM lobby will scream "We can't violate our international obligations!" (of course omitting the fact that they imposed those obligations on everyone without any democratic process). It's really sick that there exists this alternative legislative power which has no oversight and therefore is simply prone to corruption.

"Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:"

"(b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace 135,136."

"135 It is understood that a Party may comply with subparagraph (b) by addressing such significant acts under its criminal procedures and penalties for non-authorized uses of protected works, performances and phonograms" (All emphasis Ed.) "in its domestic law."

Does it mean the law is going to be:

Sing a song on the birthday party, don't pay the copyright => you are a criminal?

What are actually the "significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace"?

Article QQ.E.1: {Patentable Subject matter}

1. Subject to paragraphs 3 and 4, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application.

№ 2: That is my hope. What’s yours?

№ 6: I’d like to be the first man on the moon.

— № 2 & № 6, The Prisoner, The Chimes of Big Ben, 1967

We need these texts in a git repo with diffs. In QQ.H.7 below, the text is modified:

  2011: its authorities may initiate legal action ex-officio 
        with respect to the offenses described in this Chapter

  2015: its competent authorities may act upon their 
        own initiative to initiate a legal action

  QQ.H.6 Special Requirements related to Border Measures

  6. Each Party shall provide that its competent  
  authorities may initiate border measures 
  ex officio with respect to goods under customs
  control that are:  

  (a) imported; 
  (b) destined for export; or 
  (c) in-transit   

  and that are suspected of being counterfeit 
  trademark goods, or pirated copyright goods.

  ... A Party may exclude from the application 
  of this Article small quantities of goods of a 
  non-commercial nature contained in travelers' 
  personal luggage.

  QQ.H.7 Criminal Procedures and Penalties

  6. (g) that its competent authorities may act upon 
  their own initiative to initiate a legal action 
  without the need for a formal complaint by a 
  private party or right holder

"Parsing through the language here, it sounds like if the government chooses to, they may elect to make an exception for your cell phone, but the agreement does not prohibit this kind of activity. Even then, even if the government thinks that seizing and destroying your cell phone on the basis of copyright infringement is absurd, they can only say that your cell phone has to be in your luggage. For many travelers, they would prefer to have their cell phone on their person as opposed to buried in their luggage in, say, the undercarriage of a plane. When they land on the other side, it’s not unreasonable for them to want to call someone to let them know that they have arrived. If a traveler is driving across a border, it is definitely a common thing for passengers to be carrying a cell phone on their person as well. So, the risk of authorities seizing and destroying your cellphone on the basis of copyright infringement still stands here."

According to that paper, such language isn't new. Australia (Copyright Act 1968), Singapore (Copyright Act 1987), and the US (Copyright Act 1976 as amended by No Electronic Theft Act 1997) provide criminal penalties for prejudicial infringements even though they may not result in financial gain or commercial advantage.

Compare the UK (CDPA 1988) and the EU (IPRED2 2005), which generally exempt non-commercial infringements from criminal liability.

Not sure what "prejudicial impact" means, but it's probably something that would keep people from buying the copyrighted version.

At least we have this referring to (b):

> 136 A Party may provide that the volume and value of any infringing items may be taken into account in determining whether the act has a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace.

So if your lawmakers are sane (...) you're likely safe singing Happy Birthday.

The true problem with (a) comes in regards to fan-made works that are not clearly reviews or parodies, and are thus not under international standards of fair use.

For instance, there's Japan's dojinshi market, valued at US$588mm/yr, in which it is common for creators of astonishingly professional-quality arrangements of copyrighted video game/anime music (among other things) to charge money for limited runs of physical albums. There's no doubt that allowing this to be commercial allows higher-quality productions to be made, and more people to use this as a way to practice their creative skills... this is true of any creative industry.

There's a real fear that Japan's hand may be forced, if they accept the TPP, to criminalize and prosecute this marketplace, even though right now it is considered a crime that can only be prosecuted if the victim files charges. For if they don't make and enforce such a law, they'd be in violation of the broader treaty.

For more context, see: https://www.animenewsnetwork.com/interest/2015-05-21/japanes...

And lest we think this is limited to Japan, consider that any unlicensed cover bands that charge for gigs anywhere in the world, or sell a demo CD, would be considered criminals. And minimum sentencing does indeed exist in the United States...

(IANAL)

  (a) penalties that include sentences of imprisonment as 
      well as monetary fines sufficiently high to provide 
      a deterrent to future acts of infringement, 
      consistently with the level of penalties applied 
      for crimes of a corresponding gravity

  (g) that its competent authorities may act upon their own      
      initiative to initiate a legal action without the need 
      for a formal complaint by a private party or right holder

    (d) Fraudulent Removal of Copyright Notice. — 
    Any person who, with fraudulent intent, removes or
    alters any notice of copyright appearing on a copy
    of a copyrighted work shall be fined not more than $2,500.

"Internet users and Sky Television want to know if it will become a criminal offence to get around blocks on overseas online television services ... not sure whether that meant criminal penalties for people who used Virtual Private Networks (VPNs) to disguise their location and access online services that were supposed to be "geo-blocked" in New Zealand, such as the US version of Netflix.

Legal experts have said it is a grey area whether the use of anti-geo-blocking services to access overseas TV services currently breached civil law. Sources said the answer to that question could determine whether the Government might be empowered to make an exemption relating to VPNs, or whether their use to access overseas online television services would now need to become a criminal offence."

I suspect the reason they don't bring these issues into the public light is because they rightly predict that the American people would quickly reject the level of blatant globalism that has pervaded the corridors of power in Wall Street, K Street, and DC.

It won't help the US economy one iota, and if you push this dysfunctional nonsense out internationally you have gone from "almost no chance of reform" to "absolutely no chance of reform."

2) There is always the hope, however small, that we'd be able to do it domestically. With an international agreement of this scale, it would truly be impossible.

Second, there are plenty of reasons to oppose this treaty that have nothing to do with this particular IP chapter, but even if we are judging the treaty based of this single chapter it would still be enough to oppose it due to the unaccountability it implements and the restriction of electronic freedom it pushes. The DMCA was bad enough, but to make it worse and then push it on other countries under the false premise that it would push up those countries is ridiculous. If anything, our broken IP system has hindered our growth, not helped it.

We need to push to change these laws. Such treaties make it harder, to they should be opposed. Besides, if they are bad, you should be opposed to spread them to others.