[A2k] Bloomberg BNA: Groups Ask for TPP to Allow for Orphan Work Access

Zack Struver zack.struver at keionline.org
Fri Sep 4 11:21:48 PDT 2015

Groups Ask for TPP to Allow for Orphan Work Access

By Len Bracken and Blake Brittain

Aug. 31 — The Trans-Pacific Partnership should not restrict Congress from
enacting a law to expand access to orphan works, a coalition of five
interest groups said in a letter to the U.S. Trade Representative Aug. 31.

The coalition—consisting of the Authors Alliance, Creative Commons, the
Electronic Frontier Foundation, Knowledge Ecology International and New
Media Rights—requested that the TPP not restrict Congress from adopting
measures allowing greater access to orphan works and lesser penalties for
infringement, as suggested in a June 4 report and draft legislation by the
Copyright Office.

Although the latest draft of the TPP's intellectual property section—leaked
in May by Knowledge Ecology International—doesn't speak specifically to
orphan works, the coalition says it requires specific remedies for
copyright infringement in ways that previous international agreements have

“When people think of copyrights, a lot of people focus on the rights and
exceptions to the rights, so a compulsory license or a fair use would be an
exception to the right, but you can have an exception to the enforcement of
a right in the same way,” James P. Love, director of Knowledge Ecology
International, a nongovernmental organization focused on the implications
of intellectual property rights on consumer protection, told Bloomberg BNA
Aug. 28. “In the U.S., much of the flexibility is written into intellectual
property law as an exception to the remedies or the enforcement as opposed
to the right itself.”

“What the TPP does is that it changes everything,” Love said. “It actually
creates no exceptions for remedies and really ramped up remedies from the
WTO agreement, particularly for copyrights—the most aggressive remedies are
for copyrights and trademarks, but particularly for copyrights, in the TPP.”

Specifically, provisions in the draft requiring criminal penalties for
infringement “on a commercial scale” are “heavy-handed,” and “could go
beyond existing U.S. law to treat even noncommercial uses of copyrighted
content, including of orphan works, as illegal and criminal,” the
Electronic Frontier Foundation said on its website

“It's a separate approach from creating a compulsory license on the work
itself or extending fair use, and it's a big deal legally because you have
more flexibility in the Berne Convention and the World Trade Organization
to limit the remedies for infringement than you do limiting the rights
themselves—the rights are harder to limit than the remedies in the Berne
and the WTO,” Love said.

The Copyright Office proposed limitations on remedies for copyright
infringement of orphan works in its report and draft legislation, including
restrictions on monetary and injunctive relief. The draft legislation also
recommends strong limitations on damages for non-commercial use of orphan
works—down to zero for libraries and some other institutions.

“It's a complicated piece of legislation that required a lot of
consultation between publishers, photographers, writers of music and
writers of text—all the people protected by copyright—as well as libraries
and the technology companies,” Love said. “That legislation, which took
years to craft, is a highly regarded set of proposals.”

“We're able to get both authors' groups and users' groups on the same
letter, because we all agree that the TPP should not prevent this type of
legislation from moving forward,” Love said. “Not all the groups on the
letter think the legislation proposed by the [Copyright Office] is the best
way to proceed, but they all agree it's among the feasible ways you can do
it—everyone has their first choice, but this may be their second choice,
buy they all think it is better than no solution at all.”

Reproduced with permission from Patent, Trademark & Copyright Law Daily,
169 ptd (Sept. 1, 2015). Copyright 2015 by The Bureau of National Affairs,
Inc. (800-372-1033) <http://www.bna.com>

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