It’s really hard to have faith in any treaty or law that attempts to regulate the Internet and the trade it enables. After the monstrosities that were SOPA, PIPA, ACTA, CISPA and others, you would think that people would learn. It seemed that was the case when the USTR said they would beadding fair use protections to TPP after a previously leaked version of the treaty gained the ire from the Internet and certain Congressmen.

Unfortunately, we got our hopes up too soon. TechDirt got a hold of a leaked copy of the TPP’s fair use text and it’s not good. Fair use is best when it broadly covers a wide range of works that use the original work in novel ways that don’t infringe on the original rights holder. The text in TPP uses the rather restrictive three-step test that was added to the Berne Convention in 1971.

1. [US/AU: With respect to this Article [(Article 4 on copyright) and Article 5 and 6 (which deal with copyright and related rights section and the related rights section)], each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

2. Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]

What’s interesting is that only the United States and Australia are behind these excessive measures. The other countries involved in the negotiations want to make TPP more of a voluntary agreement where local laws trump international treaties in individual cases. These countries also want to implement a law that would make it legal for consumers to circumvent DRM. As you can probably guess, the U.S. and Australia are against anything that would give consumers any semblance of rights:

[NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]

As TechDirt points out, it’s hypocrisy at the highest level. The USTR promised to add more consumer protection and fair use clauses, but the leak only confirms that the additions are there to limit fair use. Here’s hoping that the efforts of Rep. Ron Wyden help to reveal the actual text of TPP. Concerned citizens can only do so much with leaks, and conducting negotiations in secret does not instill any kind of confidence in the treaty.