Failing to Understand the Needs of the 21st Century: The TPP and Temporary Copies

This is the third post in our our series on how a US proposal for a copyright chapter in the Trans Pacific Partnership Agreement (TPP) would hurt the rights of citizen’s in the 21st century. That proposal wasleaked on the Internet in February last year. For more details on the TPP, check out tppinfo.org.

By reading this post, you have made copies of a copyrighted work. In fact, this is true of any copyrighted work you view on an electronic device. That copy is sitting in your computer or your phone’s RAM, and likely also in a cache in its long-term storage. Streaming online video, even if you don’t save it to your hard drive, still means that a copy of that video is made on your computer: bit by bit, the entire video is copied into a buffer before it gets played to you.

So are those everyday uses copyright infringement? It’s highly unlikely under US law. But if the TPP has its way, they might.

The very first paragraph of the TPP’s copyright section (at least as of February 2011, which was the last version of the agreement to be leaked to the public) says,

 Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).

It’s that insistence that “temporary” reproductions, including “temporary storage in electronic form” be part of the author’s reproduction right that raises some real questions. Every digital file that’s opened on a computer has reproductions made of it in RAM—temporary storage in electronic form. Even a CD player that has anti-skip protection does the same thing—music is copied into a digital buffer (temporarily) before it’s streamed to the audio output. DVRs do the same thing with incoming TV signals. Every piece of software you run is also copied into your computer’s RAM.

A few different legal principles prevent all of these things from being illegal under US copyright law. Some instances of a copyrighted work are so fleeting—lasting only fractions of a second, that they aren’t even considered “copies” for the purposes of the law. Others might be considered fair uses, while still others might fall into specific exemptions written in to US copyright law for software use.

This doesn’t mean that temporary copies can never infringe copyright, but the language in the TPP seems to say a lot more than that. It expressly defines temporary copies as infringing, and then reiterates that temporary electronic copies are infringing. It’s certainly possible to read that as not making RAM copies and buffers illegal prima facie, but it’s not the most intuitive reading of it. And potential interpretations are incredibly important in the context of international agreements. A particular phrase in a treaty can be easily read one way by an American lawyer, and completely differently in the context of Australian or Chilean law. This is particularly salient in copyright law, a field where very few countries have a system of limitations and exceptions to copyright as strong as US-style fair use.

And since proponents of the TPP are particularly concerned with its promised benefits for US industry, what effects would a ban on temporary copies have for the American tech sector? US-based makers and exporters of devices that make temporary electronic copies of everything they encounter as a matter of course (computers, smartphones, tablets, DVRs) could face liability for the copies they make of copyrighted material in other countries. The same is true for cloud-based services that make temporary copies, like search engines caching websites. Would Apple need to be concerned about running afoul of New Zealand copyright law when a user in Auckland streamed a rugby match? Would Google face liability in Singapore for caching an article on the Straits-Times website?

This isn’t the first time that this temporary copy language has appeared in trade agreements—the US has signed bilateral free trade agreements with ColombiaKoreaAustralia, and others that include similar language. Including it in a multilateral treaty simply further enshrines a bad idea, makes it even harder to fix, and creates more opportunities for harm from that language than has already been risked with bilateral trade partners. Removing the temporary copies language doesn’t prevent those existing bilaterals from doing their current work, and it wouldn’t create any inconsistency with other international agreements. It does, though, remain inconsistent with US law.

This was originally published on the PK Policy Blog. 

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