The following post was written by Public Knowledge Senior Staff Attorney John Bergmayer.
Many people use the Internet to better themselves. People use resources available online to teach themselves, or they take part in distance education. Traditional universities and web-native organizations alike are finding new ways to use the Internet for education. But the TPP could harm that, by making it difficult for online educators to transmit some kinds of materials online. For instance, under the TPP, a media studies class might not be able to make archived news footage available to its students over the Internet–even if doing so was a lawful use in a traditional classroom.
Even more people probably use the Internet for entertainment–and the TPP could limit that, as well. For instance, people might use a device like a Slingbox to remotely access their pay TV subscriptions over the Internet. This way they can watch their hometown teams when they’re traveling, or watch TV at the office when they should be working. But the TPP, by flatly preventing Internet “transmissions” of copyrighted content, could interfere with these currently-legal activities.
This is because the TPP, unwisely, is set to tackle the issue of “transmissions”–an area of the law where broadcast and copyright law intersect in often-complex ways. It would be better if it simply left these areas of law alone. But if the TPP addresses them, it needs to account for the unsettled state of “retransmission” law, and to clearly allow for fair uses of copyrighted content in all situations.
The Intersection of Media & Copyright Law is Complex
In the US, copyright holders generally have the right to authorize the broadcast of their works–but the creators of sound recordings do not enjoy that right with respect to analog broadcast. And the retransmission of copyrighted works by pay TV companies is allowed under a statutory license, not with the express permission of the copyright owners–provided that the pay TV operators get the consent of the broadcast stations they are retransmitting.
Not only is this area of the law complicated, it’s changing. There have been numerous proposals to close the loophole that allows radio broadcasters to use copyrighted works without paying for them, or to phase out the pay TV statutory licenses. The Copyright Office, the Federal Communications Commission (FCC), and members of Congress have all addressed aspects of this area of the law.
One area where the law is unsettled is with respect to Internet retransmissions. The statutory language that creates a license for pay TV operators appears to be broad enough to include Internet-based systems. Furthermore, as a policy matter, it makes little sense to treat Internet-based pay TV systems differently than traditional cable or satellite pay TV systems. Public Knowledge has recently argued this point before the FCC.
A treaty like the TPP could derail efforts at reforming the law in this area. It would be more difficult for Congress to pass a statute updating US law if doing so would put the US in violation of a trade treaty. And agencies like the FCC and the Copyright Office would not be able to clarify their interpretation of ambiguous statutes if those interpretations conflict with treaty language.
Past Trade Agreements Have Failed to Safeguard Fair Use
All copyrights in the US are subject to fair use. Fair use is so important that the Supreme Court has characterized it, along with the idea/expression dichotomy, as one of copyright’s “built-in First Amendment accommodations–without fair use, copyright would unconstitutionally interfere with the freedom of expression.
Not only does fair use apply to all copyrights, it can take any form. A fair use might be a reproduction, a performance, or an Internet transmission.
Given this, there is a potential problem with the TPP–past trade agreements that have mentioned Internet transmissions have not allowed for exceptions, including exceptions that are justified as fair uses. We have not seen leaked language from the TPP on this matter, although there is a placeholder in the leaked text for “internet retransmission.” However, the USTR has held previous trade agreements, in particular the US Korea FTA, as the standard that the TPP should follow. That FTA prevents fair use retransmissions over the Internet. It states that each country must have in place certain copyright protections, but allows for there to be limitations or exceptions to those rights. However, when it comes to Internet transmissions, the FTA states that, “Notwithstanding subparagraph (a) [which provides for limitations to copyright] and Articles 18.6.3(b) [which gives countries flexibility to craft limitations to analog transmissions of sound recordings], neither Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.” In other words, the FTA goes out of its way to create an absolute right to bar Internet retransmissions, which cannot be subject to fair use or any other limitation. (PK has written more about a similar FTA between the US and Columbia here.)
Copyright holders shouldn’t have more control over Internet transmissions than they do over other kinds of uses. Not only should statutory licenses apply to all platforms equally, fair use and other limitations to copyright should apply to Internet transmissions like they do to all other uses. The TPP needs to take this into account.
It would be better if the TPP did not attempt to address this complex and changing area of law at all. But if it does, it needs to do a better job at allowing US law to change in pro-consumer, technology-neutral ways. And it also needs to be clear that the traditional range of limitations and exceptions to copyright apply to Internet retransmissions just as they do to all other uses of copyrighted works. If it fails to do this, currently-lawful uses of copyrighted works could be in jeopardy, and the US will be unable to update its media laws for the 21st century.