Analysis of key copyright provisions in the TPP

Wikileaks has published the IP chapter contained in the Trans-Pacific Partnership (TPP) agreement, a multilateral trade treaty negotiated between  Australia, Brunei, Chile, Canada, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam. Several commentators have already started to make their initial analysis of what it contains, and I wanted to take a look specifically at copyright issues.

It is difficult to comment on a draft at this stage because the text is peppered with proposals from various negotiating countries, so it is difficult to know what the final document will really look like. We could try to assume a worst-case scenario with some of the proposals, but wherever possible we will look at the whole to try to see where the final might be like.

Good news

First the good news. It seems evident that there is growing level of resistance coming from some countries like Chile and Peru against the most notoriously maximalist positions by the United States and Australia. As a glass-half-full kind of person, it is encouraging to find that the time in which the US Trade Representative (USTR) could cajole and hoodwink IP offices around the world into adopting treaties that were not in their own interest is finally coming to an end. With growing knowledge and sophistication, countries involved in trade negotiations should really be asking themselves a simple question: “what’s in it for us?” A result of the Snowden leaks may be that the assumption that the US will always be the “good guys” should also be abandoned, leaving a more cynical yet realistic view of international relations.

The main example of just how some countries are pushing for a more positive agenda in the TPP can be found in the proposed Article QQ.A.13 {Public Domain}. This is an article that would protect and enhance the public domain and is proposed by Chile and Vietnam, with Peru supporting part of the proposal. It reads:

[CL/VN/PE propose: Each Party shall endeavour to provide relevant information to disseminate public domain, including appropriate tools that help to identify the [CL: extension] [VN: expiration] of the terms of protection of intellectual property rights.]
[CL/VN propose: 1. The Parties recognize the importance of a rich and accessible public domain for their societies and the need that public domain material shall be free for its use by all persons.
2. For purposes of paragraph 1, each Party shall endeavor to:
identify subject matter that has fallen into the public domain within their respective jurisdictions;
promote access to the public domain; and
preserve the public domain.
3. Actions to achieve the purposes referred to in paragraph 2, may include the development of publicly accessible data bases of registered rights, guidelines and other tools to enhance access to material in the public domain.
4. Each Party shall make its best efforts to promote cooperation among the Parties to identify and facilitate access to subject matter that has fallen into the public domain and share updated information related to right holders and terms of protection.]

This is an interesting proposal for various reasons, chiefly because it hints at a conflict arising within the TPP countries. It is possible that, given the addition of positive statements such as the one suggested above, we will end up with a more balanced text.

Bad news

The bad news is that some countries have taken a stance that is completely maximalist in nature, and if enacted in the final text, would spell trouble for all the countries involved. Some unopposed provisions also go beyond what is contained in existing treaties, which would create higher levels of protection that could potentially erode user rights. We will now explore some worrisome proposals.

Expanding the meaning of rights

Copyright owners have the right to allow reproduction, communication to the public, importation and distribution of their works. The TPP would enhance those rights by adding language that would include the right to prohibit uses (Arts QQ G.1-G4). In other words, rightsholders would be able to purposefully forbid users from performing any of the exclusive rights of the author. This seems superfluous, as the current law states that owners can allow users. The thinking behind the expansion of the exclusive right to prohibit uses can only be seen as an attempt to erode the reach of exceptions and limitations.

Extending copyright term

In Article QQ.G.6 the TPP extends copyright protection beyond what is set out in existing agreements (lifetime of author plus 50 years), to 70. Mexico proposes the extension of copyright protection to 100 years, which would be the first time such an term would be recognised in a treaty.

Erosion of the concept of exceptions and limitations

Article QQ.G.X would create a noxious principle designed to diminish the role of exceptions and limitations.

“With respect to Section G, 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.”

It must be said there are proposals that would actually expand the concept of extensions and limitations.

Expanding TPM and RMI protection

The proposed text in Article QQ.G.10 by the US, Australia, Mexico and Peru would see an extension of the current international standards on TPMs set out in the WIPO Copyright Treaty (WCT). The main proposal (redacted to remove oppositions and counter-proposals) reads:

“(a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:
knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure that controls access to a protected work, performance, phonogram, or other subject matter; or
manufactures, imports, distributes, offers to the public, provides, or otherwise traffics devices, products, or components, or offers to the public or provides services, that:
are promoted, advertised, or marketed by that person, or by another person acting in concert with that person and with that person’s knowledge, for the purpose of circumvention of any effective technological measure,
have only a limited commercially significant purpose or use other than to circumvent any effective technological measure, or
are primarily designed, produced, or performed for the purpose of enabling or facilitating the circumvention of any effective technological measure,
shall be liable and subject to the remedies set out in Article [12.12].”

Contrast that with the language set out in Arts 11 and 12 of the WCT, and you will see what I mean by a very substantial extension of the norms punishing the circumvention of technological protection measures.

Expansion of criminal liability

If the text suggested by the US, Australia and others in Article QQ.H.7 is enacted, then criminal liability for copyright infringement would be seriously extended. The proposal would also extend the concept of counterfeiting to copyright works. The proposal reads (redacted without opposition):

“1. 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.
2. Willful copyright or related rights piracy on a commercial scale includes:
significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and
willful infringements for purposes of commercial advantage or financial gain.
Each Party shall treat willful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties.
3. Each Party shall also provide for criminal procedures and penalties to be applied, even absent willful trademark counterfeiting or copyright or related rights piracy, at least in cases of knowing trafficking in:
labels or packaging, of any type or nature, to which a counterfeit trademark 238 has been applied, the use of which is likely to cause confusion, to cause mistake, or to deceive; and
counterfeit or illicit labels affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany the following:
a phonogram,
a copy of a computer program or a literary work,
a copy of a motion picture or other audiovisual work,
documentation or packaging for such items; and
counterfeit documentation or packaging for items of the type described in subparagraph (b).”

These proposals could result in a much lower threshold of criminality, which would translate in common users being more likely to be criminally liable for copyright infringement.

Concluding

These are just a few initial considerations arising from some of the proposed text. As it has been mentioned already, it seems evident that some countries are going to fight some of the worst proposals, which is an encouraging development. We have to keep the pressure up to allow the negotiators from some key countries to continue to propose alternative texts that would bring balance to the TPP agreement, which might result in a final text that is mostly toothless due to compromise.

Hopefully, the leak will serve to shine a light on an obscure procedure. It is our obligation to continue writing against the excesses contained in TPP.