Failing to Understand the Needs of the 21st Century: The TPP and the Notice-and-Takedown System

This post was authored by Public Knowledge Staff Attorney Jodie Griffin.

This is the fourth post in our series on how a US proposal for a copyright chapter in the Trans-Pacific Partnership Agreement (TPP) would hurt the rights of citizens in the 21st century. That proposal was leaked on the internet in February last year.

One of the ways that the TPP fails to accommodate the needs of 21st century technology is by locking the US into its current rules for when online service providers should be liable for others’ infringement, in addition to subtly chipping away at the protections given to online service providers.

Locking In the Notice-and-Takedown Process

The leaked draft of the US’s TPP copyright proposal reveals that parts of the TPP nearly mirror the US Digital Millennium Copyright Act (DMCA). Specifically, the TPP copies in great detail the parts of the DMCA that govern when online service providers (like web hosting services, search engines, and internet access providers) are liable for their users’ infringement. Perhaps the most well-known of these rules are the “notice-and-takedown” provisions, which sometimes requires certain online services to remove material after a copyright owner sends a notice alleging that the material is infringing.

For example, web hosting services like YouTube receive a safe harbor from copyright liability so long as they meet certain requirements, like not actually knowing about the infringement, not financially benefitting from the infringement, and taking down allegedly infringing material after receiving a notice from a copyright owner (this last part is the notice-and-takedown system). While the DMCA rules relating to web hosting services are the most prominent, the DMCA safe harbor rules cover a range of service providers, including internet access providers and search engines like Google. It goes into great detail on what each category of service provider must do to receive a safe harbor.

By mimicking the DMCA’s rules in great detail, the TPP would block the US from amending the DMCA safe harbors in the future without violating our trade agreement commitments. And it is very possible the US will at some point want to update the DMCA. After all, the DMCA was enacted in 1998—back when Google was just setting up in a Menlo Park garage and 7 years before the launch of YouTube. Now, 14 years later, Congress may very well wish to update the DMCA to account for how online platforms operate today.

It’s important for the US and other TPP countries to retain the flexibility to update their laws that govern the fast-moving development of online platforms. A notice-and-takedown system that places too many burdens on online service providers will ultimately stifle innovation and hamper new platforms for speech, access to knowledge, and cultural participation.

There are also, however, a couple of areas where the TPP chips away at the protections online service providers currently enjoy. For example, Article 16.3(a) of the TPP proposal require TPP countries to create “legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials…” But the current DMCA safe harbor scheme is designed to remedy infringement, as opposed to affirmatively preventing infringement before it happens. It is true that the TPP does not directly require service providers to deter infringement, but by requiring incentives to cooperate, in addition to requiring countries to put in place a US-style notice-and-takedown system, the TPP leaves the door open for special interests to push for laws that put the burden on online platforms to search for and prevent infringement, even if their actions prevent legal uses too.

A Better Way? Canada’s Notice-and-Notice System

The TPP would, for example, prevent the US from trying different approaches to safe harbor liability and the notice-and-takedown system, like any approaches styled after Canada’s notice-and-notice system. Canada’s notice-and-notice system seems to be very effective at stopping infringemet while accommodating users’ rights, but under the current TPP proposals the US would be unlikely to ever even consider whether this system could work in the US as well.

Internet service providers in Canada developed an informal “notice and notice” system. Under this process, when an online service provider receives infringement notices from copyright owners it passes those notices along to the users, but does not remove or deny access to the allegedly infringing work. This system is now set to be fixed in Canadian law through the recently enacted Bill C-11. This law does not map exactly onto US law, but it is still useful to compare the two general approaches and envision how the US might someday want to replace parts of our notice-and-takedown system with a notice-and-notice process.

In addition to only requiring further notice instead of immediately taking down works, Canada’s system differs from the US by separating an online service provider’s obligations to respond to notices from its “safe harbor” protections that keep it from being liable for its users’ infringement. In Canada, an online service provider that fails to comply with its notice-and-notice obligations does not lose its safe harbor protection from copyright liability as punishment (unlike US law), but is instead subject to a $5,000-$10,000 fine. Clearly, a maximum $10,000 fine is much less than the US statutory damages for copyright infringement, which can be as high as $30,000 or $150,000 (for willful infringement).

What’s more, Canada’s system seems to be very effective. As Public Knowledge and Professor Michael Geist pointed out in our comments in the USTR’s “Special 301” proceeding, Rogers Communications, one of the largest internet service providers in Canada, found that 67% of notice recipients did not infringe again after receiving a first notice, and 89% stopped the allegedly infringing activity after a second notice. As a result, 99% of Rogers subscribers no longer receive infringement notices.

Not only could the TPP threaten to force countries like Canada to abandon infringement notice systems that seem to be actually working, they would tie the hands of other countries (like the US) that may someday want to update their regimes to stop infringement while accommodating the interests of users.

Recap: TPP Stakeholder Events in Leesburg, VA

On Sunday, dozens of non-profits, companies, and members of the public gathered in Leesburg, VA, to speak out about the Trans-Pacific Partnership (TPP) during the ongoing 14th round of negotiations. Public Knowledge attended the events, stressing to the negotiators the importance of copyright limitations and exceptions, and explaining how the TPP can be fixed to encourage those exceptions.

Stakeholder Presentations: Logistically Challenged

Many logistical challenges clouded the stakeholder events, accentuating the already acute problems of public participation. As others have reported, the USTR initially tried to squeeze public stakeholder presentations to just 8 minutes each for the Leesburg round. After many groups protested, the USTR expanded the time limit to 10 minutes, which is the same amount that stakeholders were given during the July negotiations in San Diego.

But 10 minutes is still not much time to explain all of the many problems with the copyright provisions in the TPP, and stakeholders are still forced to compete for negotiators’ attention. Once again the USTR had multiple presentations occurring at the same time, and the presentations were also simultaneous with the stakeholder tables event – where stakeholders could set up tables in hopes that negotiators to come to us and engage in discussion (think “science fair”).

The presentation space was also less conducive to formal presentations than the spaces stakeholders had in previous rounds. The rooms were much smaller this time, which meant that only 30 or so audience members could watch each presentation. Often I saw negotiators and stakeholders watching from just outside the doorway of the rooms. Also, because the rooms were so close together and their doors were all open, the noise from other rooms or the hallway sometimes distracted from the presenters, who did not have microphones.

But logistics aside, Public Knowledge presented to the copyright negotiators, explaining how the TPP can be changed to give countries the certainty they need to maintain or create particular limitations and exceptions to copyright, while also providing flexibility for countries to adapt their copyright laws for new technologies. A copy of the presentation is available here [pdf].

Stakeholder Tables: The TPP Science Fair

While Rashmi was presenting on copyright limitations and exceptions, I was staffing a table at the USTR’s stakeholder tabling event. As in the July negotiation round, the tabling event was held at the same time as the formal presentations, and this time they were even in a separate building from the presentations.

While there did seem to be many more stakeholders participating in this event compared to past rounds (including one coalition that projected the public’s comments on the wall at the Citizens Trade Campaign table), the fact that a separate stakeholder event was happening at the same time in another building meant that negotiators could only attend one event at once, and the long walk between buildings meant that switching back and forth frequently would have been a significant inconvenience.

For the next round, the hosting country should provide more time for stakeholder engagement than the mere 3 hours stakeholders have received in recent rounds, and the various stakeholder engagement events should be scheduled at different times so that stakeholders and negotiators alike are not forced to choose between events.

The same afternoon as the stakeholder forums, protestors gathered outside the resort where the negotiations are taking place to protest different chapters of the TPP (check out Public Knowledge’s photos of the rally here).

Stakeholder Briefing

Finally, the stakeholder events of the day wrapped up with a stakeholder briefing, in which the chief negotiators of eight of the nine TPP countries agreed to answer questions from registered stakeholders.

The event lasted for about 90 minutes, but the public received little new information from the negotiators. When Rashmi asked the US negotiator how transparency and stakeholder engagement will improve we received no answer, nor did the USTR specify when they plan to ask Congress for authority to negotiate the TPP. The US negotiator promised that stakeholder input has impacted the US’s proposals for the TPP, but it is impossible to verify that assertion without actual access to the text.

On the whole, the idea of these stakeholder engagement events is a good one, but the briefing is not very effective in the context of a trade agreement that is so locked down in secrecy that the negotiators do not actually answer any of the stakeholders’ substantive questions.

At the end of the day all of the stakeholder input in the world can never be a substitute for transparency.Real transparency, where information flows from the government to the people and back again. Until the US opens its proposals (or detailed positions) to the US public, it cannot say that it is letting the public meaningfully engage in the TPP process.

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. 

Failing to Understand the Needs of the 21st Century: The TPP’s Inflexible Approach to Internet Transmissions

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.

Failing to understand the needs of the 21st century: The TPP’s flawed digital locks scheme

This post was written by Rashmi Rangnath, Director of the Global Knowledge Initiative at Public Knowledge.

The 14th round of negotiations for the Transpacific Partnership Agreement (TPP) started today. The TPP is being touted as a “21st century” trade agreement, implying that the TPP’s provisions would reflect an understanding of the needs of 21st century citizens. With respect to copyright, this should mean that the agreement would reflect an understanding not only of the tools copyright owners need to protect their rights but also an understanding of the flexibilities that various users (like hobbyists, cultural institutions like libraries, archives and museums, and information and communication technology companies) would need to use digital material. Yet what we know of the TPP, at best, reflects little understanding of the needs of these communities.

Meanwhile, the negotiations continue in secret, shutting out the users who will be impacted by the TPP. What we know about the agreement is derived primarily from a leaked US proposal that leaked on the Internet in February last year. This is the first in a series of blog posts that explore the various flaws in that proposal and how these flaws would hurt the rights of citizens in the 21st century.

Blind people all over the world find it hard to access e-books and other digital materials. These materials often come wrapped in digital locks (called digital rights management, or “DRM”) that are incompatible with “adaptive technologies” – technologies that the blind use to convert text to audio, braille, or other accessible formats. Breaking this DRM is illegal in the US, unless the Copyright Office specifically permits it for a limited time.

Even with the Copyright Office’s permission, it would be unlawful to sell tools that allow the blind to break DRM. As a result, 21st century technology that promises to open new doors for individuals with disabilities is stunted and locked away from the marketplace.

The rule that prevents the blind from breaking DRM to access e-books is part of a law called the Digital Millennium Copyright Act (DMCA). The DMCA was passed in 1998. It imposes a blanket ban on breaking DRM on any digital product that contains copyrighted content. For example, a hobbyist could not break DRM on DVDs to take small clips from a popular film or television show and use it in her mash-up. A teacher or student could not make compilations of video clips for a classroom presentation. These are just two of many examples of routine and lawful uses that are not possible because of the rules put in place by the DMCA.

Given our reliance on digital technologies and the harmful effects of the DMCA’s DRM provisions, Congress should revisit the DMCA’s DRM scheme to ensure that it serves the needs of citizens in the 21stcentury. For instance, Congress should codify a permanent exemption to permit blind people to circumvent certain DRM and purchase tools that let them do so. But the obligations the US would be binding itself to by signing the TPP would constrain Congress’ ability to fix the DMCA’s DRM scheme. They would also constrain the ability of the other TPP countries to adopt copyright laws that do not harm their citizens.

The US Proposal on DRM

The US proposal on DRM would require all TPP countries to replicate the DMCA. TPP countries would have to impose a blanket ban on breaking DRM even for lawful purposes. The ban would be subjected to a narrow set of exceptions, again following closely the limited exceptions enumerated in US law. These exceptions do not cover the vast majority of lawful uses that are permitted under copyright law, such as the ability of the blind to access e-books.

To make matters worse, the TPP would prevent countries from expanding these exceptions or adding new ones. Thus, TPP countries, including the US, would be prevented from introducing new exceptions to fit the needs of its citizens.

Could an agency rule-making process come to rescue?

The TPP would only permit a very limited opportunity for countries to add new exceptions to the DRM provisions, through an administrative rule-making similar to the one the Copyright Office undertakes once every three years in the US. Under this proceeding, called the “triennial rulemaking”, the Copyright Office examines whether the DMCA will prevent a “particular class of users” from making certain lawful uses of copyrighted works. If a user group proves such inability, the Office grants them a temporary exemption for a period of three years.

To grant the exemption, the Copyright Office imposes substantial burdens of proof on users. In the rulemaking proceedings in 2003 and 2006, to win exemptions for the blind, representatives of the American Foundation for the Blind had to purchase e-book titles, attempt to access them, and describe to the Copyright Office how gaining such access was impossible. This means they had to seek assistance from sighted individuals in the process.

Imposing this process on developing countries will create even more burdens for users than it does in the US. User groups in the US find the proceeding burdensome and have to devote significant scarce resources in order to secure their rights. This strain on resources is likely to be greater for groups representing users in the developing world.

The TPP must allow its member countries to craft flexible DRM rules that reflect the needs of modern communities. The current design of the TPP would not permit that.

Intellectual Property in the TPP: How About a Little Balance?

This past Friday (August 17), Douglas E. Schoen published an op-ed in Politico lobbying for “strong” intellectual property (IP) protection in the Trans-Pacific Partnership Agreement (TPP). The op-ed argued that such an approach would be a “straightforward” route to “job-creating innovation.” The op-ed ignored serious costs that over aggressive IP protection can pose to the economy, including the stifling of innovation in consumer electronics products and high monopolist prices for consumer goods including critical medicines. Like others before and since, the study Schoen cites does not support inferences linking particular IP demands in the TPP to innovation or jobs.

Many recent cases have shown that intellectual property practices and rules can stifle innovation and limit needed competition: abusive copyright claims intended to prevent introduction of new and innovative products and services; overbroad patents that hold back research and invention; trademark claims designed to stifle competition rather than prevent consumer confusion about the origin of goods and services. While protecting trademarks, copyrights, and patents can be useful, so is placing smart limits on exclusivity.

The importance of limits to IP

Inadequate balance in copyright law would prevent the creation and distribution of new creative works, like news reports and documentary films that use existing films, music, and photographs. For example, when filmmakers Marilyn Agrelo and Amy Sewell were filming a documentary about New York City kids in a ballroom dancing competition, a cell phone with the Rocky theme song rang in the background.  The label that owned the song, EMI, demanded $10,000 in license fees. Most documentary filmmaking would grind to a halt with such demands. Fortunately, fair use provides the safety value that allows films like this to see the light of day.

Similarly, many industry sectors, like consumer electronics and information technology – which add significant value to the economy – would be unable to function without limits to copyright protection. These industries make products that let people use content in convenient ways. For instance, MP3 players let people transfer songs they have already bought from their computer to these devices.  The making and marketing of these products would have been jeopardized without the protections provided by fair use. Such limits are an essential part of US law but are extremely weak in the TPP.

Meanwhile, bad patent policy not only limits access to medicines, it can also stymie medical innovation rather than advance it. Today, pharmaceutical monopolies price lifesaving medicines out of reach of people who need them in developing countries, resulting in preventable suffering and death. The same monopolies cost American consumers and healthcare dearly. While some dismiss harmful monopoly abuses as the price of patent-based medical innovation, the world’s largest funder of biomedical research is actually the taxpayer-funded National Institutes of Health (NIH).  For example, the HIV/AIDS medicine ritonavir was invented on an NIH grant to Abbott Laboratories. Abbott monopolized it, tied it to a second product, and used its patents and market power to discourage the development of competing combination products that might have offered superior treatment options.  Years later, Abbott’s ritonavir patents and failure to license still raise costs and constrain HIV treatment options around the world.

Schoen argues for providing twelve years data exclusivity in the TPP to makers of biotech medicines, which would lead to monopolies that are at least twelve years long. This would be cruel to people suffering from treatable conditions, and would lock American consumers in to a bad law at home. The twelve-year monopoly period only recently adopted in U.S. law is very controversial.  The Federal Trade Commission found no need for it. Congress could reduce the period of years (the White House supports seven rather than twelve), save Americans money and help make medicines affordable. But if the U.S. Trade Representative forces a twelve-year period in to the TPP, Americans could lose the freedom to change our own law.

So far as we are aware, no specific evidence has been forwarded to support the claim that the U. S. Trade Representative’s aggressive patent demands in the TPP will advance the medical innovations we need. But it is clear they would lead to more government-granted pharmaceutical monopolies in the Asia-Pacific region, even for minor variations on old medicines that fail to enhance efficacy. A better approach would focus on improving patent quality and safeguards against patent abuse, to ensure that patents reward meaningful contributions.

Sidelining the importance of these limits to IP protection, Schoen argues that the TPP should be shaped with “U.S. interests in mind,” as though the interests of IP owners are equal to U.S. interests. This ignores the interests of the American public as well as the interests of many sectors of the U.S. economy which depend on limits to IP.

 

The NDP Consulting study Schoen cites “uses industrial research and development expenditures as a measure of the intensity of IP,” a risky conflation. The study’s methodology does not permit making inferences about industry reliance on particular IP rules, And Schoen fails to make any specific connection between jobs or exports and the particular IP schemes sought in the TPP. The industries listed in the NDP study each operate today under the existing levels of U.S. and foreign IP protection. All of the TPP negotiating countries are already parties to the World Trade Organization agreement on intellectual property, including its rules against trademark counterfeiting and copyright piracy.

According to the U.S. Constitution, the primary purpose of copyrights and patents is “[t]o promote the progress of science and useful arts” (Article I Section 8(8)). This purpose is achieved both by providing some exclusive rights and also by providing limits to those rights. Expanding the scope of exclusive rights as far as possible works against that purpose by stifling innovation and harming consumer interests. The emerging high-tech economy depends in no small part on balance, open platforms and cross-fertilization. The TPP will bind member economies for many years to come, and its provisions must reflect this balance.

This post was co-written by Rashmi Rangnath of Public Knowledge and Peter Maybarduk of Public Citizen and was originally published on the PK policy blog. 

Defining your rights to participate in culture: How the USTR’s attempts on limitations and exceptions are half hearted

All over the world, blind people cannot get books and other printed material as easily as those of us with sight can. Teachers face difficulties in using movies and music, particularly those in digital format, in the course of teaching. Librarians are constrained in their ability to lend and preserve books, movies, and music. Copyright laws, with the restrictions and costs they impose on these users, are a major contributor to these barriers. International copyright agreements exacerbate these barriers by constantly ratcheting up exclusive rights over knowledge and cultural products and diminishing user rights. The TPP is the latest iteration of these agreements.

Copyright limitations and exceptions can correct some of these imbalances between rights of owners and users of copyrighted works. That is why it was so significant when the US Trade Representative (USTR) recently announced that it would include provisions on limitations and exceptions within the TPP. Some of these provisions leaked recently. However, if what was leaked is the entirety of the US proposal, it does disappointingly little to protect users’ rights.

Here’s why: The US proposal calls upon countries to seek balance within their copyright laws through exceptions that promote criticism, comment, news reporting, scholarship, and teaching. While that enumeration is good, the US proposal subjects these limitations and exceptions to the so-called “three-step test” – the test commonly used in international agreements to measure whether limitations and exceptions within national laws comply with these international agreements. The contours of the three-step test are subject to great debate and have been subject to extremely narrow as well as broad interpretations. Treating the test as the yardstick by which to measure limitations and exceptions, and not spelling out with sufficient detail how countries should provide for user rights does very little to protect and promote these rights.

How current agreements deal with users’ rights: The three-step test

In the current environment, countries, particularly the poorer and smaller ones, are subjected to trade pressures for crafting provisions in their laws that protect their users’ rights. To encourage these countries to secure user rights effectively the TPP must spell out in more detail what copyright limitations and exceptions should look like.

The majority of international copyright agreements focus heavily on providing copyright owners with strong exclusive rights. Yet these agreements also have to acknowledge that there have to be limits to those exclusive rights to protect and promote users’ rights to free speech, education, communication, and so on.

The three-step test is supposed to measure limitations and exceptions to copyrights and is common to most international copyright agreements. Here is one of the standard iterations of the test:

“[E]ach Party shall confine limitations or exceptions to exclusive rights to [1]certain special cases that[2]do not conflict with a normal exploitation of the work, performance, or phonogram and [3]do not unreasonably prejudice the legitimate interests of the right holder.”

(Source: Australia-US FTA).

As I’ve said, there’s a wide range of possible interpretations of this sentence. Many would interpret the test very narrowly, permitting only the most minor aberrations from the copyright owner’s exclusive rights. A panel at the World Trade Organization (WTO) used such a narrow approach when it considered one particular US copyright exception. Many beneficial limitations and exceptions might not pass this narrow interpretation. For example, an exception that would guarantee affordable textbooks to students in developing countries might not survive a narrow interpretation of the three-step test, even where the exception provided some compensation to the copyright owner.

In contrast to this narrow interpretation, and perhaps in response to it, many scholars have proffered an alternative, broader interpretation that is more conducive to public interest concerns. The leading example of this approach is this declaration by a group of scholars at the Max Planck Institute, which says that the three-step test was never intended to be a barrier to provisions that secure users’ rights or the public interest.

But the controversy over how to interpret the three-step test means that many countries may hesitate to protect users’ rights in their copyright laws, out of a fear that the provisions they adopt will be assailed as violating their international obligations. Given this environment, provisions in international agreements like the TPP need to spell out in more detail what copyright limitations and exceptions should look like.

Without this, new agreements can discourage countries from adequately protecting users. This fear is not merely theoretical. Countries that try to enact laws that benefit their teachers, librarians, and other users of cultural products continue to be exposed to trade pressures and allegations that they are not adequately protecting copyright or that they are not properly complying with international agreements. For example, in 2010, Canada proposed changes to its copyright law that would allow librarians to preserve copyrighted materials by shifting them from obsolete storage formats to newer ones. One industry associationcomplained to the USTR that this provision was too broad. The same association complained against other exceptions for libraries and educational institutions that Canada proposed to institute.

That same year, the USTR signaled that diplomatic or trade talks with Canada would intensify with a view to ensuring that Canada appropriately reformed its copyright law. The USTR sent that signal by placing Canada on its Priority Watch List in the 2010 Special 301 Report (page 25). The USTR cited Canada’s failure to complete necessary legislative reform as one of the reasons for this placement. While countries such as Canada may be able to withstand US pressure, smaller, poorer countries might not. Some of these smaller countries are participating in the TPP negotiations.

How the USTR’s proposal falls short

The USTR’s proposed new provision simply restates the three-step test, lists purposes for which limitations and exceptions can be devised, and subjects all of them to the three-step test. This approach does nothing to solve some of the confusion surrounding the three-step test. It does not provide sufficient support for the argument that public interest concerns would justify certain limitations and exceptions.

For instance, it does not clarify that conversion of a text book into Braille for the blind justifies a sufficient limitation on the exclusive right of reproduction. It does not clarify that library preservation and lending, particularly digital lending, justifies an effective limitation to the exclusive rights of reproduction and distribution. It does not clarify that use of movies and music in classroom – both physical and virtual – justifies a limitation on the exclusive rights of reproduction and public performance.

A better approach

Agreements like the TPP therefore need to make sure that they do not propagate unwarranted fears of limitations and exceptions.

As a first step, the TPP should spell out that the purpose of provisions on copyright limitations and exceptions is to achieve a balance between the rights of copyright owners and users. This would signal that user rights are not mere aberrations from the copyright regime that can only be legitimate if they are extremely narrow in scope.

Second, the TPP should define certain limitations and exceptions with detail sufficient to provide guidance. Enumerating purposes such as criticism, commentary, news reporting, research, and scholarship is laudable and these are some of the illustrative fair uses in US law. Yet, just mentioning these purposes, without more, is not sufficient to secure user rights. Two examples of user rights that can be defined in more detail are below. The TPP could provide that countries shall:

  • promote uses of works by people with disabilities;
  • promote educational uses of works including by transmission over wired or wireless networks.

Third, the TPP should provide options to countries to craft rules that would allow their citizens to benefit from copyright limitations and exceptions despite contract rules and DRM that prevent them from doing so.  Often works come wrapped in DRM that prevent users from making lawful uses. For example, the DRM on DVDs prevent students from copying excerpts from different movies for a presentation in class. Similarly, often users of digital products are forced to contract away their rights to use material. For instance, many software programs come wrapped in “license agreements” that tell you that you don’t really own that piece of software when you pay for it. You merely license the right to use it. So, if you try to sell the CD that the software came on, the license may prevent you from doing that, even though copyright law may permit you to sell it. The ability to prevent DRM and contract rules from defeating copyright limitations and exceptions is important to preserve and promote user rights. And countries must have the freedom to design such rules.

The approach I have outlined above is not unprecedented. The Transpacific Strategic Economic Partnership Agreement (P4), which is technically the predecessor to the TPP, contains similarly beneficial provisions. However, it is unclear whether those provisions will still be valid and applicable if the TPP comes to force. Given this uncertainty, the TPP should ensure that it does not undermine the provisions of the P4.

This post was originally published on the Public Knowledge blog by Rashmi Rangnath on August 14th, 2012. 

TPP Recap: San Diego Negotiations

This week the US and eight other countries finished the 13th round of negotiations for the Trans-Pacific Partnership (TPP). Public Knowledge attended the negotiation sessions to talk to negotiators and advocate for balanced copyright policies that would benefit the public. Here is a recap of what PK did and saw at the San Diego negotiations.

Stakeholder Events

The U.S., as host for this round of negotiations, organized two events for public stakeholders to talk to negotiators and present their perspectives at the beginning of the negotiation round. First, there was a tabling event similar to the one held during the Dallas round of negotiations in May. Stakeholders could sign up for a table in hopes that negotiators handling the issues they care about would stop by to discuss the stakeholders’ concerns.

The tabling event actually seemed more productive for Public Knowledge in San Diego than it had in Dallas. Possibly this was in part due to Public Knowledge’s past work at earlier negotiations rounds, so more negotiators recognized our name this time and came over to talk. We heard that other civil society groups had the opposite experience, though, so factors like the location of the organization’s table (PK was closer to the front this time) might have played a role, too.

The most disappointing aspect of the tabling event was that the U.S. Trade Representative (USTR) scheduled it at the same time as the more formal stakeholder presentations. It is good that the USTR provided both types of forums for stakeholders, but since the tabling and presentations were held simultaneously both stakeholders and negotiators had to miss one in order to attend the other.

PK, for example, only had one representative attending the negotiations, so when I was presenting on the economic benefit of limitations and exceptions to copyright, I had to leave the PK stakeholder table unmanned. Even worse, due an earlier scheduling mix-up the Electronic Frontier Foundation, which was also presenting on copyright issues, was scheduled to present at the same time as PK in another room that was generally dedicated to patent issues, even though there was an empty presentation slot immediately after PK’s presentation in the room with the rest of the copyright presenters. I heard from multiple negotiators that they wished they hadn’t had to split their staff between PK and EFF’s presentations.

Running the tabling event and formal presentations simultaneously also meant that individuals or non-profits with fewer resources weren’t able to leave the tabling event to hear each other’s presentations. This means that only the stakeholders with several staff attending the negotiations could afford to listen to, learn from, and respond to other stakeholders’ presentations.

These kind of administrative frustrations seem small and are probably not due to any ill will or apathy on the USTR’s part, but they can still have a big impact for civil society groups that have a very limited opportunity to speak to a broad group of negotiators at once on issues that are crucial to the future of innovation and cultural expression. Logistical details can make a big difference, and they are worth getting right.

New U.S. Limitations and Exceptions Proposal

The big copyright news from this round was that the U.S. publicly announced a new limitations and exceptions proposal consistent with, but apparently different from a standard used in previous free trade agreements and treaties (called the “three-step test”). The U.S. did not, however, release the text of this new proposal for public review and discourse.

While including limitations and exceptions in the agreement is a positive development, Public Knowledgeremains concerned that the provision could be too limited or restrict countries’ ability to adopt new legitimate limits and exceptions to copyright for the public’s benefit. Of course, it’s extraordinarily difficult for PK or any other civil society group to provide meaningful input without knowing what the U.S. proposal actually says.

At the End of the Day? Still No Text.

On transparency, the bottom line has not changed. The text of the TPP is still hidden from the public while hundreds of corporate interests have ample access and influence. Even members of Congress are frustrated that the USTR won’t give them reasonable and convenient access for them and the trade experts on their staff.

The stakeholder engagement events did have value, but they do not and cannot replace an actual dialogue where the U.S. gives information to the public, in addition to receiving information from the public.

The outcry against the secrecy surrounding the TPP negotiations grows louder by the day and harms the U.S.’s credibility on other important issues. The next round of negotiations will start September 6th in Leesburg, VA. The U.S. should use the time it has before then to open a dialogue, meaningfully engage with the public, and try to reclaim some legitimacy for the TPP. 

This post was written by Public Knowledge Staff Attorney Jodie Griffin.

Possible Inclusion of Limitations & Exceptions in TPP Good Step, by No Means Adequate

PK and others have argued for a long time that international agreements, including the proposed Transpacific Partnership Agreement (TPP) must include mandatory provisions on limitations and exceptions. These provisions must promote fair use of works and also generally reflect the robust user rights that that US copyright system seeks to promote. Perhaps as an acknowledgement of the concerns that these arguments reflect, the Office of the United States Trade Representative (USTR) has announced that it is proposing a provision on limitations and exceptions in the TPP.

While the actual provision has not been made public, a blog post on the USTR’s website provides a description. According to the USTR’s blog post, the provision would oblige parties to “seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.” While this description articulates very well the goals that copyright limitations and exceptions must seek to achieve, whether the provision that is proposed by the USTR will achieve these goals remains to be seen.

As an initial matter, the proposed provision (or provisions) must not be limited to the language articulated by the USTR but must permit extension of newer limitations and exceptions that are suitable to the digital environment and to local conditions in the TPP countries. Furthermore, it is unclear whether the provision will call for mandatory limitations and exceptions or merely provide that parties may provide for limitations and exceptions. A permissive provision would continue the trend of treating user interests as secondary concerns that can be eroded by future international agreements that increase the scope of exclusive rights.

We look forward to seeing the actual language and providing our feedback on it. However, the fact that the USTR has not already provided such access speaks volumes about the importance the agency places on user interests. If the public is the constituency that is supposed to benefit from these provisions, how can they be crafted without extensive consultation with the public and its representatives?

The USTR’s blog post claims that the agency has “benefited from the input of a wide variety of stakeholders” in crafting these provisions. Yet, it is extremely hard to determine who those stakeholders are and whether users were part of those consulted. PK and others have provided detailed comments and suggestions to the USTR on what limitations and exceptions provisions should look like. Yet, the agency has never engaged in a discussion with PK about the merits or flaws of our comments.

Finally, while the inclusion of provisions on limitations and exceptions is a positive development, it does not address the adverse impacts that several TPP provisions would have on user rights. For instance, the TPP’s proposals to increase stringent enforcement mechanisms and include unbalanced provisions on technological protection measures continue to threaten user interests.

 This blog post was originally published on the PK Policy Blog by Rashmi Rangnath.

130 Members of Congress Speak Out Against Secrecy in TPP Negotiations

Over 130 members of the House of Representatives have signed a letter to the United States Trade Representative (USTR) Ron Kirk asking for more transparency in the negotiations for the Trans-Pacific Partnership (TPP) Agreement. Chief among their concerns was the lack of consultation with Congress.

Given the broad range of policies the TPP is expected to impact—including those outside the realm of “traditional trade matters” such as innovation, regulation, the Internet, and intellectual property—their concern is well founded.

The 130 Representatives urge the USTR to “engage in broader and deeper consultations with members of the full range of committees of Congress whose jurisdiction touches on the wide-ranging issues involved.” Since the US would be obligated to comply with the norms established by the TPP, the Representatives rightly express concern for the long-term implications of its content. Not only would the US need to alter existing law, but wouldn’t be able to change those laws in the future without re-negotiating the TPP.

The letter also compares the level of consultation with Congress to the level of consultation with private business interests.  Businesses have significantly greater access to proposed TPP text than not only small businesses and civil society, but Congress itself. While allowing industries to present their perspective is not bad policy, doing so while shutting out the public’s voice is.

In the letter, the Representatives ask for a copy of the confidentiality agreement that the USTR signed with other negotiating countries and an explanation of how the agreement came to be imposed. The letter also points to similar trade agreements that have been released as full drafts to the public to allow for comment, and urges the USTR to work with other countries to agree to release copies of the negotiating text to the public.

similar letter was released by a group of senators on Monday. That letter spoke in broader terms about the importance of transparency in trade agreement negotiations. It also provided a number of recommendations: first, that the Industry Trade Advisory Committee for Intellectual Property Rights be expanded to include civil society as well as industry representatives, and second, that an additional committee be created to focus on internet freedom.

PK has also criticized the TPP negotiations for a lack of transparency. While the USTR claims to provide a forum for input from civil society through stakeholder events, the value of such input is significantly diminished when the participating organizations do not have access to negotiating documents.

Other than guessing what provisions will be or accessing leaked documents, stakeholders have no way to know when provisions will affect them. Increased transparency is vital to allowing participation from the public. Although increased transparency toward Congress is an important step, these documents must also be available to the public if trade policy is to reflect the will of the people.

This post was authored by Public Knowledge Legal Intern Carrie Ellen Sager.

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