[A2k] Krista L. Cox: Analysis of August 2015 Leaked TPP Text on Copyright, ISP and General Provisions

Manon Ress manon.ress at keionline.org
Thu Aug 6 12:03:46 PDT 2015


Excellent  analysis of the leaked TPP IP provisions:
http://policynotes.arl.org/?p=1146

ARL Policy Notes
by Krista L. Cox, Director of Public Policy Initiatives at ARL

Analysis of August 2015 Leaked TPP Text on Copyright, ISP and General
Provisions

The United States is currently negotiating a large, regional free trade
agreement with eleven other countries: Australia, Brunei, Canada, Chile,
Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. On
August 5, 2015, Knowledge Ecology International published a new leak of the
Trans-Pacific Partnership Agreement’s (TPP) negotiating text for the
intellectual property chapter. This text, dated May 11, 2015 reflects the
state of the negotiations prior to the recent Ministerial meeting in Hawaii
(and new agreements may have been made during the recent TPP meeting). This
latest leak reveals some substantial changes from last year’s October leak
of the text by WikiLeaks (which revealed the state of negotiations as of
May 14, 2014).

In general, the more recent text shows some improvement over last year’s
text, although serious problems remain.

Copyright

Copyright Term

The copyright term has not yet been agreed to, and it has widely been
considered to be a political decision to be determined by the trade
ministers. Currently, there is a wide range of proposals available for
copyright term, ranging from life plus 50 years, to life plus 70 years, to
life plus 100 years when based on the life of an author. For corporate
works, there are four proposed terms of 50, 70, 75 or 95 years. These are
wide ranging proposals and longer copyright terms exacerbate the orphan
works problem and hamper the public domain. The potential for excessively
long copyright terms that far exceed international standards is one of the
largest remaining flaws in the agreement from the perspective of access to
knowledge and information. Countries should resist copyright term
extension, particularly given the lack of evidence supporting these
extensive copyright terms.

Japan’s proposal, which appeared in the previous leak, similar to the Berne
rule of shorter term remains. This rule would essentially allow parties to
limit the term of protection provided to authors of another party to the
term provided under that party’s legislation. For example, if the final TPP
text required a period of copyright protection of life plus fifty years,
the United States would not be required to provide its period of life plus
seventy years to authors in New Zealand, if New Zealand continued to
provide a term of life plus fifty years. The United States does not
currently implement the Berne rule of shorter term.

Formalities

In last year’s leaked text, Article QQ.G.X appeared for the first time and
was unbracketed, signaling agreement by the TPP negotiating parties. This
provision read, “No Party may subject the enjoyment and exercise of the
rights of authors, performers and producers of phonograms provided for in
this Chapter to any formality.” As noted in last year’s analysis by ARL,
the language was potentially problematic for countries wanting to
re-introduce formalities for copyright protections granted that go beyond
minimum international standards. The Register of Copyrights Maria Pallante,
for example, proposed the re-introduction of formalities for the last
twenty years of copyright protection in the United States, which would have
violated the TPP if a period of life plus seventy years was also agreed to.

Although this provision was unbracketed in the 2014 text, it appears from
the current leak that this ban on formalities has been removed. The removal
of this language is significant as it would not only permit the
reintroduction of formalities for the last twenty years of copyright term
in the United States, but also allows for formalities in other areas. For
example, formalities can be required in order to be eligible for certain
remedies for copyright infringement. It could be used to address the orphan
works problem by establishing registries in order to receive damages or an
injunction for works that are still protected under copyright in the United
States, but go beyond the terms required by international law. Footnote 160
in the current leak appears to allow such arrangements, providing that “For
greater certainty, in implementing QQ.G.6, nothing prevents a Party from
promoting certainty for the legitimate use and exploitation of works,
performances and phonograms during their terms of protection, consistent
with QQ.G.16 [limitations and exceptions] and that Party’s international
obligations.”

Limitations and Exceptions

The language from the previous leak on limitations and exceptions,
including a reference to the Marrakesh Treaty, remains in the text and is
particularly welcome, given that it has not been included in previous US
free trade agreements. The language provides that

Each Party shall endeavor to achieve an appropriate balance in its
copyright and related rights system inter alia by means of limitations or
exceptions that are consistent with Article QQ.G.16.1, including those for
the digital environment, giving 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.[164] [165]

[164] As recognized by the Marrakesh Treaty to Facilitate Access to
Published Works for Persons Who are Blind, Visually Impaired or Otherwise
Print Disabled (June 27, 2013). The Parties recognize that some Parties
facilitate the availability of works in accessible formats for
beneficiaries beyond the requirements of the Marrakesh Treaty.

[165] For purposes of greater clarity, a use that has commercial aspects
may in appropriate circumstances be considered to have a legitimate purpose
under Article QQ.G.16.3
Footnote 164, which references the Marrakesh Treaty, now includes an
additional sentence that recognizes that some parties provide for
limitations and exceptions for beneficiaries that go beyond the
requirements of the Marrakesh Treaty. Currently, ten parties have ratified
the Marrakesh Treaty and an additional ten are required for entry into
force. Singapore and Mexico, both negotiating parties to the TPP, have
already ratified the Marrakesh Treaty, and Canada has introduced a bill
paving the way for implementation of the Treaty. A number of other TPP
negotiating parties have signed the treaty, signaling an intention to
ratify, including Australia, Chile, Peru, and the United States.

Technological Protection Measures

Last year’s leak revealed language that permits parties to provide
limitations and exceptions to technological protection measures “in order
to enable non-infringing uses where there is an actual or likely adverse
impact of those measures on non-infringing uses.” The leak also revealed
that the three-year rulemaking process to create these limitations and
exceptions, as earlier proposed by the United States, was removed. The
current leak maintains this language, but drops the reference to the
three-step test (though the language on limitations and exceptions remains
the same) and also eliminates Chile’s proposal that the process for
establishing limitations and exceptions requires consideration of “evidence
presented by beneficiaries with respect to the necessity of the creation of
such exception and limitation.”

Overall, this language is an improvement over the United States’ initial
proposal from 2011 regarding technological protection measures, which only
allowed for a closed list of specific limitations and exceptions while
others could be added through a three-year rulemaking process, because it
would allow for new permanent limitations and exceptions to allow for
circumvention of TPMs. Such permanent limitations and exceptions could be
granted for cell-phone unlocking. However, the language does assume that
parties need to provide for limitations and exceptions, even for
non-infringing uses.

Article QQ.G.10(c) maintains the unfortunate language 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.”
Establishing that the circumvention of a technological protection measure
is independent of any copyright infringement negatively impacts legitimate,
non-infringing circumvention. It is unfortunate that this language not only
remains in the text, but is unbracketed, meaning that countries have agreed
to this flawed provision.

Internet Service Providers

The text on Internet Service Providers appears in an addendum and contains
important caveats that the text is “Without Prejudice” and “Parties are
still considering this proposal and reserve their position on the entire
section.” Thus, even where language is unbracketed, it does not necessarily
reflect agreement.

The current leak reveals that the text contains significant flexibilities
that did not previously exist. For example, the United States and Canada
have proposed language that would continue to allow Canada’s
notice-and-notice system, rather than require the United States
notice-and-takedown system. It appears to protect Canada’s system as one
that “forward[s] notices of alleged infringement” but requires that the
system exist in the Party “upon the date of entry into force of this
Agreement.” If this language is agreed to, it could therefore be
conceivable that other parties to the TPP could implement systems of
notice-and-notice, provided that they do so before entry into force of the
TPP. Similarly, footnote 299 appears to allow Japan to maintain its safe
harbor framework.

In last year’s leak, Peru had proposed a footnote that now appears in the
general text of the section on ISPs. This paragraph now reads, “It is
understood that the failure of an Internet service provider to qualify for
the limitations in paragraph 1 does not itself result in liability.
Moreover, this article is without prejudice to the availability of other
limitations and exceptions to copyright, or any other defences under a
Party’s legal system.” This language provides a helpful clarification and
clearly establishes the language as a safe harbor, not as a direct creation
of liability where an ISP does not qualify for the limitations set forth
under the agreement.

General Provisions

In addition to improvements in the copyright section, there appears to be
agreement on positive language regarding general provisions. Many of the
positive proposals regarding general provisions in last year’s leak were
bracketed and not yet agreed to.

The objectives now read:

The protection and enforcement of intellectual property rights should
contribute to the promotion of technological innovation and to the transfer
and dissemination of technology, to the mutual advantage of producers and
users of technological knowledge and in a manner conducive to social and
economic welfare, and to a balance of rights and obligations.
Additionally, principles that had previously been agreed to by six parties
now appear unbracketed and specifically reference the public interest and
address the need to prevent abuse of intellectual property rights by right
holders:

1.  Parties may, in formulating or amending their laws and regulations,
adopt measures necessary to protect health and nutrition, and to promote
the public interest in sectors of vital importance to their socio­economics
and technological development, provided that such measures are consistent
with the provisions of this Chapter.

2.  Appropriate measures, provided that they are consistent with the
provisions of this Chapter, may be needed to prevent the abuse of
intellectual property rights by right holders or the resort to practices
which unreasonably restrain trade or adversely affect the international
transfer of technology.
There is also new language, which appears to be mostly agreed to, that
promotes the dissemination of knowledge and information. In addition, Chile
and Canada have proposed language, which the United States and Japan
oppose, emphasizing the importance of the public domain. This article,
“Understandings in respect of this Chapter” reads:

Having regard to the underlying public policy objectives of national
systems, the Parties recognise the need to:

promote innovation and creativity;
facilitate the diffusion of information, knowledge, technology, culture and
the arts; and
foster competition and open and efficient markets;
through their intellectual property systems, while respecting the
principles of transparency and due process, and taking into account the
interests of relevant stakeholders, including rights holders, service
providers, users and the public [CL/CA propose; US/JP oppose; and
acknowledging the importance of preserving the public domain.]
It is disappointing that the United States would oppose language
acknowledging the importance of preserving the public domain, which
provides a storehouse of raw materials from which individuals can draw from
to learn and create new ideas or works. The public domain is essential in
fostering new creativity and advancing knowledge.

Proportionality in Enforcement

While this analysis does not cover the section on enforcement in detail,
there is one significant positive improvement from previous texts. Under
the general enforcement provisions, there is new text that appears to be
agreed to language that is replicated from the text of the
Anti-Counterfeiting Trade Agreement (ACTA) and would require parties to
“take into account the need for proportionality between the seriousness of
the intellectual property infringement, and the applicable remedies and
penalties, as well as the interests of third parties.” Inclusion of this
language is a welcome improvement to the text of the enforcement section.

Conclusion

Overall, the text of the copyright section as well as some other key
provisions reflect improvements over the initial intellectual property
chapter proposed by the United States in February 2011. The section on
technological protection measures no longer limits the limitations and
exceptions to a closed list and does not impose a three-year rulemaking
process. It would allow for permanent limitations and exceptions to
anti-circumvention provisions. Additionally, the text shows greater
flexibility with respect to ISPs and appears much less complicated than it
initially did. Furthermore, the current text reflects agreement on positive
language with respect to limitations and exceptions and a reference to the
Marrakesh Treaty has been included. The removal of the formalities language
that appeared in last year’s text is also a welcome improvement. General
provisions and enforcement language has also seen improvements.

While there have been improvements in the text, there are still concerning
elements, the biggest of which is the potential for locking-in current
lengthy and excessive copyright terms as well as the possibility of even
requiring further extension to life plus 100 years. Additionally, the
requirement that circumvention of a technological protection measure be
independent from copyright infringement is illogical and prevents
circumvention for legitimate, non-infringing purposes.



-- 
Manon Ress, Ph.D.
Knowledge Ecology International, KEI
manon.ress at keionline.org, tel.: +1 202 332 2670
www.keionline.org
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