Ref. Ares(2016)208495 - 14/01/2016
Ref. Ares(2018)213071 - 12/01/2018
DIGITALEUROPE assessment
of the Trans-‐Pacific Partnership (TPP)
Provisions
Our recommendations for the Transatlantic Trade and
Investment Partnership (TTIP) and the Trade in Services
Agreement (TiSA)
Brussels, January 2016
KEY MESSAGES
On 15 October 2015, the Ministers of the 12 Trans-‐Pacific Partnership countries announced the conclusion of
the TPP. DIGITALEUROPE congratulates the parties for finalising this strong partnership which includes for the
first time horizontal and comprehensive disciplines related to the Internet and digital services and products –
critical cross-‐cutting elements fit for the 21st century trade agreements we strongly wish to see included in a
similar fashion also in the bilateral and multilateral trade agreements the European Union will enter into the
near future.
Therefore, DIGITALEUROPE urges the European Institutions to seize this momentum for the global digital
economy by implementing such key offensive digital trade principles in the TTIP and the TiSA in accordance with
the Commission’s new « Trade for all » Strategy which identifies them as a priority. Only a comprehensive and
proactive approach to digital trade disciplines in implementing the new trade strategy will establish the
European Union again as a frontrunner again in International trade policy and ensure competitive market
access for European ICT companies. The priority issues for DIGITALEUROPE are free cross-‐border flow of data,
prohibition on government forced (data) localisation, elimination of tariffs for ICT products and removal of non-‐
tariff barriers in the ICT sector.
Below we would like to present to the European Commission, European Parliament and Member States our
initial assessment of the TPP chapters that are of interest for the digital economy, including the scalability of the
Digital Single Market on a global stage, and our key recommendations for the EU’s trade agreements currently
being negotiated and initiated, in particular for the TTIP and TiSA, negotiations.
DIGITALEUROPE
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ASSESSMENT OF THE TPP TEXT AND RECOMMENDATIONS FOR
THE TTIP AND TiSA
I.
National Treatment and Market Access for Goods – Chapter 2.
Article 2.20 in the TPP text requires all parties to join 1996 WTO Information Technology Agreement (ITA). We
encourage the European Commission to go one step further and to require its future trade partners (notably in
the TiSA and future bilateral negotiations) to join the new ITA concluded in December 2015.
II.
Technical Barriers to Trade (TBTs) – Annex 8B ICT Products.
DIGITALEUROPE encourages the European Commission to address regulatory challenges to ICT trade in the TTIP
and other trade agreements through an « ICT annex » in a regulatory/technical barriers to trade chapter. In this
regard, we invite the European Commission and European Member States to refer to the DIGITALEUROPE and
ITI paper issued in February 2015 ICT industry recommendations for regulatory cooperation in the TTIP issued
on February 2015. This paper proposes specific technical provisions to be included in the ICT annex such as :
regulatory transparency, global rules on technical regulations, alignment on common principles for technology
standards, acceptance of Supplier’s Declaration of Conformity (SDoC), access in commercial markets for
products with encryption, and cooperation in several innovative areas (e-‐accessibility, e-‐labelling, e-‐health and
m-‐health, internet of things).
Key provisions in the TPP Annex 8B for ICT products :
A.
ICT products that use cryptography
The universal use of ICT technologies has led to the ubiquitous presence of cryptography in ICT products and
applications available today. DIGITALEUROPE believes that in order to offer the products with the highest
security standards, the import, use and sale of products containing cryptographic capabilities should be largely
unrestricted.
We fully support and encourage national security policies. Restrictions should not be applied to Information
society services as they are delivered through an information infrastructure but are not in themselves critical
infrastructure.
We recommend a flexible, global approach based on global standards with conformity
assessments that are based on mutual recognition to avoid redundant and burdensome testing and certification
requirements. Regulations or restrictions touching upon commercial markets for products with encryption
should be limited to the protection of truly « critical infrastructures » which could lead to catastrophic impacts
on public safety, national security and the broader economy. Information society services are delivered through
an information infrastructure but are not in themselves critical infrastructure. Restrictions should not apply to
mass market products.
The TPP chapter on Technical Barriers to Trade bans TPP parties from requiring makers or suppliers of goods
that use encryption for commercial applications (e.g. cell phones, game consoles or routers) to transfer or
disclose proprietary encryption technology, production processes or other information to government or a
domestic partner, or to partner with a domestic partner, or to use a particular type of encryption, as a condition
of being able to make, import, sell, distribute or use these goods.
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A separate provision bars any TPP party from prohibiting importation of « commercial cryptographic goods »
(goods that implement or incorporate cryptography, sold to the general public).
Section A in TPP also included a carve-‐out for TPP parties who adopt or maintain requirements relating to
access to networks that are owned or controlled by the Government, including those of central banks.
DIGITALEUROPE would like to recommend a more precise definition of the scope, e.g. ICT systems or networks
outsourced to private operators with a need of control based on national interest or security.
B.
Electromagnetic Compatibility of Information Technology Equipment (ITE)
DIGITALEUROPE would recommend for the TTIP and future FTAs to go much beyond the provisions that are
included in the TPP.
First, we believe that the scope should be extended to all IT products and not only to wired ITE. Secondly, we
encourage parties to broaden their cooperation in the ICT sector and to look for (as stated in DIGITALEUROPE-‐
ITI position paper) the alignment on common principles for technology standards; the acceptance of supplier’s
declaration of conformity ; the acceptance of e-‐labelling ; and the cooperation in the area of e-‐accessibility, e-‐
Health and m-‐Health and Internet of Things.
Further, we would like to suggest parties to recognise and reaffirm the first steps already taken at multilateral
level, notably with the ITA Committee’s « Guidelines for EMC/EMI Conformity Assess Procedures » to simplify
and align rules related to conformity assessment to enhance global trade in ICT products, and to encourage the
adoption of similar guidelines to other technical areas.
III.
Electronic Commerce – Chapter 14.
DIGITALEUROPE welcomes the general ambition of Chapter 14 on Electronic Commerce which sets entirely new
international disciplines. These include notably the free flow of data across borders, commitments not to
impose customs duties on digital products and content transmitted electronically, cooperation on cyber
security issues, or prohibition of forced (data) localisation requirements (e.g. requirements to store data or
establish local data centers within a country; requirements to transfer or allow access to source code as a
condition for the import, distribution, sale or use of a software, or of products containing such software and
protection of services delivered or performed digitally – including cloud based services).
We believe that these principles correspond well with the Commission’s willingness to prioritise digital trade in
services and to negotiate meaningful and future proof FTAs (incl. TTIP) and the TiSA by setting clear rules to
prevent and tackle new forms of global digital protectionism, including forced data localisation or storage. We
also encourage the Commission to continue to including the current regime for online intermediaries in
accordance with the e-‐Commerce Directive and the FTA’s with South Korea and Columbia/Peru, also in, in all
pending and future FTAs.
As stated in the « Trade for all » strategy, digital trade is an offensive interest for the European Union and
should be affirmed through strong commitments in ongoing and future negotiations.
DIGITALEUROPE
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Here under are the key provisions of the TPP that DIGITALEUROPE would suggest to adopt as a minimum in the
TTIP and TiSA:
- Article 14.3 – Securing commitments not to impose customs duties on digital products and content
transmitted electronically ;
- Article 14.4 – Ensuring non-‐discriminatory treatment of digital products transmitted electronically, and
guaranteeing that these products will not face government sanctioned discrimination based on the
nationality or territory in which the product is produced ;
- Article 14.6 – Adoption of Electronic Authentification and Electronic Signatures ;
- Articles 14.8 and 14.11 – Establishing requirements that support a single, global internet, including
ensuring free cross-‐border data flows, consistent with Article 14 of the WTO GATS. The rules also
require non-‐discriminatory treatment for service companies of other TPP countries, and prohibit
quantitative limits on market access, or requirements to use a specific type of joint venture or
corporate form. TPP parties will also permit free transfer of funds related to cross-‐border supply of a
service. However, DIGITALEUROPE does not support the exclusion of financial institutions from this
scope;
- Article 14.13 – Creating rules against localisation requirements that force businesses to place computer
infrastructure, manufacturing or service facilities, in each market in which they seek to operate, rather
than allowing them to offer goods made in sites or services from network centers that make better
business sense ;
- Article 14.14 – Measures against unsolicited commercial electronic messages (SPAM) ;
- Article 14.15 – Ensuring close cooperation among parties to help businesses overcome obstacles and
take advantage of e-‐commerce ; and promoting participation and transparency in the development of
laws and regulations affecting the internet, including opportunities for public comment ;
- Article 14.16 – Cooperation on cybersecurity matters ;
- Article 14.18 – Ensuring that no party shall require the transfer of, or access to, source code of software
owned by a person of another Party, as a condition for the import, distribution, sale or use of such
software, or of products containing such software, in its territory. Exceptions to this principle should be
motivated in regards to Article 14 of the WTO GATS and the scope of these exceptions clearly defined,
notably the notion of « critical infrastructure » as already explained in point II. A. on ICT products that
use cryptography.
IV.
Telecommunications – Chapter 13.
Like for the computer and related services, DIGITALEUROPE seeks full market access and national treatment
commitments in telecommunication services, which provide the infrastructure that supports the global digital
economy.
DIGITALEUROPE shares the same ambition of Article 13.3 in the TPP related to the approaches to
telecommunications regulations (« The parties recognise the value of competitive markets to deliver a wider
choice in the supply of telecommunications services and to enhance consumer welfare, and that economic
regulation may not be needed if there is effective competition or if a service is new to a market »).
DIGITALEUROPE
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Therefore, we would like to promote the key principles included in the TPP for the TTIP and the TiSA, such as:
- Article 13.4 -‐ Reasonable and timely access to network for other suppliers than mobile service
suppliers;
- Article 13.7 -‐ Fair access to Government-‐controlled resources ;
- Article 13.22 -‐ Transparency in rulemaking (e.g. stakeholders consultation) ;
- Article 13.8 -‐ Suppliers freedom to innovate and fair competition ;
- Article 13.23 – Flexibility in the Choice of Technology ;
- Article 13.25 – Recognition of the importance of international standards for global compatibility and
interoperability of telecommunications networks ; and promotion of those standards through the work
of relevant international organisations ;
- Article 13.6 -‐ Commitments on international mobile roaming to create new market access
opportunities.
V.
Intellectual Property – Chapter 18.
DIGITALEUROPE supports the principles set out in the chapter related to Intellectual Property in the TPP. In
particular, firstly the TPP requires TPP parties to establish copyright safe harbors for Internet Service Providers
(ISPs). These safe harbors allow legitimate ISPs to develop their business, while also helping to address Internet
copyright infringement in an effective manner.
These safe harbors have contributed to the flourishing of Internet, entertainment and e-‐commerce industries in
the world, including the success of millions of small businesses that depend on Internet services to reach global
customers. TPP states that these safe harbors shall not be conditioned on any obligations on these ISPs to
monitor content on their networks or systems. TPP also provides for safeguards against abuse of such safe
harbor regimes. DIGITALEUROPE supports these principles., as reflected in the following articles:
- Article 18.3: Principles
- Article 18.4: Understandings in Respect of this Chapter
- Article 18.15: Public Domain
- Article 18.66 Balance in Copyright and Related Rights Systems
- Article 18.82: Legal Remedies and Safe Harbours
Secondly the IP chapter requires each TPP government to adopt or maintain appropriate laws, regulations,
policies, orders, guidelines or decrees requiring its central government agencies to use only non-‐infringing
computer software, and, if applicable, only use software as authorized by licence.
Thirdly regarding limitations and exceptions the agreement provides that each party “shall endeavor to achieve
an appropriate balance in its copyright and related rights system” by means of limitations or exceptions
consistent with the Berne 3-‐step test, including those “for the digital environment.” In adopting limitations and
exceptions, parties should give “due consideration to legitimate purposes such as, but not limited to: criticism;
comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to
published works for persons who are blind, visually impaired or otherwise print disabled.” Finally, the TPP states
that “a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate
purpose.”
DIGITALEUROPE
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Fourthly there are more detailed and robust requirements on trade secret protection than in TRIPS, such as an
obligation to protect against unauthorized disclosures to or by state-‐owned enterprises (SOEs).
And finally in relation to IP enforcement TPP requires parties to provide criminal procedures and penalties for
“unauthorized and wilful access to a trade secret held in a computer system”; unauthorized and wilful
misappropriation; and/or fraudulent disclosure, or unauthorized and wilful disclosure, of a trade secret,
including by means of a computer system. The IP chapter also includes new provisions on criminal aiding and
abetting, counterfeiting of labels, and counterfeiting of packaging, as well as a new standard on cable and
satellite piracy.
The text provides that enforcement procedures of the TPP shall be available to the same extent with respect to
acts of trademark, copyright or related rights infringement in the digital environment. Each TPP party will also
makes IP enforcement and remedies available equally against SOEs.
Border enforcement will be available against confusingly similar trademark goods, not just counterfeit or
pirated goods.
-‐-‐
For more information please contact:
Diane Mievis, Senior Policy Manager Global Economic Affairs at DIGITALEUROPE
+32 2 609 53 23 or xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
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ABOUT DIGITALEUROPE
DIGITALEUROPE represents the digital technology industry in Europe. Our members include some of the world's largest IT,
telecoms and consumer electronics companies and national associations from every part of Europe. DIGITALEUROPE wants
European businesses and citizens to benefit fully from digital technologies and for Europe to grow, attract and sustain the
world's best digital technology companies.
DIGITALEUROPE ensures industry participation in the development and implementation of EU policies. DIGITALEUROPE’s
members include 62 corporate members and 37 national trade associations from across Europe. Our website provides
further information on our recent news and activities: http://www.digitaleurope.org
DIGITALEUROPE MEMBERSHIP
Corporate Members
Alcatel-‐Lucent, AMD, Apple, BlackBerry, Bose, Brother, CA Technologies, Canon, Cassidian, Cisco, Dell, Epson, Ericsson,
Fujitsu, Google, Hitachi, Hewlett Packard Enterprise, HP Inc., Huawei, IBM, Ingram Micro, Intel, iQor, JVC Kenwood Group,
Konica Minolta, Kyocera, Lenovo, Lexmark, LG Electronics, Loewe, Microsoft, Mitsubishi Electric Europe, Motorola Mobility,
Motorola Solutions, NEC, Nokia, Nvidia Ltd., Océ, Oki, Oracle, Panasonic Europe, Philips, Pioneer, Qualcomm, Ricoh Europe
PLC, Samsung, SAP, SAS, Schneider Electric IT Corporation, Sharp Electronics, Siemens, Sony, Swatch Group, Technicolor,
Texas Instruments, Toshiba, TP Vision, VMware, Western Digital, Xerox, Zebra Technologies, ZTE Corporation.
National Trade Associations
Austria: IOÖ
Greece: SEPE
Spain: AMETIC
Belarus: INFOPARK
Hungary: IVSZ
Sweden: Foreningen
Belgium: AGORIA
Ireland: ICT IRELAND
Teknikföretagen i Sverige,
Bulgaria: BAIT
Italy: ANITEC
IT&Telekomföretagen
Cyprus: CITEA
Lithuania: INFOBALT
Switzerland: SWICO
Denmark: DI Digital, IT-‐BRANCHEN
Netherlands: Nederland ICT, FIAR
Turkey: Digital Turkey Platform,
Estonia: ITL
Poland: KIGEIT, PIIT, ZIPSEE
ECID
Finland: FFTI
Portugal: AGEFE
Ukraine: IT UKRAINE
France: AFDEL, AFNUM, Force
Romania: ANIS, APDETIC
United Kingdom: techUK
Numérique
Slovakia: ITAS
Germany: BITKOM, ZVEI
Slovenia: GZS
DIGITALEUROPE
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