Deep Dive

The Transpacific Partnership’s (TPP) intellectual property (IP) chapter would affect a wide variety of stakeholders including artists, artist intermediaries, Internet service providers, consumer electronics manufacturers, and the public. Yet the negotiation process of this chapter prevents a vast majority of these stakeholders from having any influence on it. This approach is likely to result in an agreement that adversely impacts democratic discourse, education, and innovation.

This section outlines Public Knowledge’s concerns with the process and substance of the TPP and suggests alternatives to current approaches.

The TPP Negotiation Process Ignores the Interests of the Majority

The TPP is being negotiated in complete secrecy. The negotiating texts or a meaningful description of the texts are not publicly available. Thus, many stakeholders, including the public, are unable to provide their feedback to negotiators. However, in the U.S. certain industry groups, including representatives of the largest film and movie trade associations, are provided privileged access to negotiating texts and other information about the TPP’s IP chapter. This imbalanced approach to seeking input will result in an agreement that protects the rights of large corporate copyright owners while ignoring the rights of libraries, archives, museums, educational institutions, follow on creators (documentary film-makers and some genres of musicians), and the general public. Such an imbalanced agreement would have a greater adverse impact on developing countries raising the price for access to knowledge and privileging U.S. content industries unfairly to the detriment of domestic industries.

In order to avoid these adverse impacts, the secrecy that shrouds TPP negotiations must end and greater public participation must be encouraged. This paper suggests two options TPP countries could pursue in order to end the secrecy: First, the TPP countries could publish the texts of IP related working documents that form the basis of the TPP negotiations. Here the term working document means a document that consolidates the positions of all negotiators, forms the basis of future negotiations, and reflects various options for designing particular provisions. To ensure that the public has a meaningful opportunity to influence the outcome of the negotiation, the publication should not be delayed too much after the working document is developed. In order to preserve the ability of negotiators to come up with creative proposals, information about the identity of parties proposing particular options may be deleted.

Second, TPP countries could provide access to the negotiating document to a broad range of public interest organizations on the condition of confidentiality. The selection of these organizations should be based on objective criteria and should require a demonstrated commitment to the public interest. While this option would improve the chances of arriving at a balanced IP chapter, it has several shortcomings: 1) it would exclude general public participation and no one organization or group of organizations could fully represent the public’s diverse interests; 2) criteria for selection of these organizations is likely to be controversial; and 3) public interest organizations generally rely on feedback from the public to inform their analyses and would be prevented from doing so.

TPP’s IP Chapter Would Adversely Impact Innovation, Access to Knowledge and Participation in Culture.

The secrecy surrounding the TPP negotiations prevents us from providing an analysis of its actual provisions. Therefore, the U.S. proposed IP chapter that leaked in February last year and U.S. negotiated Free Trade Agreements (FTAs) form the basis of the analyses presented here.

  1. 1.     Providing copyright protection to temporary copies would expose users to unfair infringement liability.

The U.S. draft leaked in February last year (U.S. draft) calls on countries to provide copyright owners with exclusive rights in reproduction of their works “in any manner or form, permanent or temporary (including temporary storage in electronic form)”.[1] This provisions would extend copyright rights over buffer copies that are routinely and automatically made by computers in the course of transmitting content. These copies have no economic independent economic value and their only value lies in the transmissions make possible. And when these transmissions result in a tangible benefit to the consumer, copyright law provides rights to the owner. For example, if a transmission results in consumers getting a copy of an e-book, the owner of the copyright in the book benefits from the reproduction and distribution rights. A provision of a reproduction right in the temporary copies made as the e-book is transmitted over digital networks to the consumers computer, in addition to the reproduction and distribution rights the copyright owner already has, is unjustified. Providing such a right would unnecessarily expose a user to infringement liability and enable a copyright owner to demand higher licensing fees for the transaction.

We note that the U.S. Copyright Act does not explicitly extend the reproduction right to temporary copies and U.S. courts are divided on whether such copies merit protection.

In view of the harms posed by extending the reproduction right to temporary copies, Article 4.1 of the U.S. draft must be amended by deleting the words “in any manner of form, permanent or temporary (including temporary storage in electronic form).”

  1. 2.      A U.S.-style blanket ban on circumvention of Technological Protection Measures has not worked in the U.S. and must not be replicated in the other TPP countries.

Article 9 of the leaked US draft reveals that the TPP would require countries to impose a blanket ban on circumvention of technological protection measures (TPM) applied to copyrighted works. Thus, a user would be prohibited from circumventing a TPM even where the purpose of the circumvention would be to engage in lawful use of the work. Furthermore, Article 9(c) would require countries to treat such circumvention as a separate offense independent of the underlying copyright infringement, if any.

These provisions substantially parallels current U.S. law and their working, within the U.S. has revealed several problems, including: 1) preventing the blind and the deaf from accessing content locked behind digital locks; 2) preventing college as well as primary and secondary school educators from effectively presenting videos in the course of education; 3) exposing security researchers to threats of lawsuits for attempting to warn the public that a particular TPM would expose their computers to security vulnerabilities.

In view of the demonstrated problems with the U.S. style TPM provisions, the TPP countries should not blindly adopt a similar regime. Instead, the provision should be amended to permit circumvention of TPMs where the purpose of the use would be in exercise of a limitation or exception provided for by copyright law. In addition, the ban on trafficking in circumvention devices [Art4(9)(a)(ii)] should not extend to trafficking done to further lawful purposes. Adopting this suggestion would eliminate the need to spell out in detail the exceptions that apply to circumvention. [Art. (9)(d) and (e)].

  1. 3.     TPP’s enforcement provisions call for excessive punishment.

TPP’s enforcement provisions, contained in the leaked U.S. draft, [Art. 10 to Art. 13 and Art. 15] would significantly ratchet up penalties for copyright infringement. These provisions pose two problems: First, they would impose penalties disproportionate to the nature of the offense. For instance, Art.15 would require countries to impose criminal penalties, including fines and prison terms, even where there was no “direct or indirect motivation of financial gain.” This provision would ensnare ordinary users who commit minor infringements, such as, downloading a few songs illegally. While such an infringer might deserve some sanction, criminal fine of prison terms would be grossly excessive punishment. At a time when law enforcement resources are under strain and are called upon to deal with increasingly violent crime, putting more pressure on these resources to deal with copyright infringement, which is essentially a private right, is unjustified. Such outcomes undermine respect for the law and result in authorities’ reluctance to enforce it.

Second, high penalties for infringement combined with rights holders’ failure to provide access to goods at reasonable prices on the one hand and the law’s failure to provide robust limitations and exceptions on the other would severely undermine citizen’s rights to access knowledge goods thereby affecting education, activities of libraries, innovation, and democratic discourse.

The TPP countries should instead follow a more nuanced approach to enforcement that would respect the rights conferred by copyright law but also understand that the answer to copyright infringement is not merely enforcement, but also access to content on fair terms and reasonable limitations and exceptions.

  1. 4.     The TPP should provide for mandatory minimum limitations and exceptions.

Robust limitations and exceptions are necessary to ensure that the exclusive rights provided by copyright law do not impose barriers on socially beneficial activities such library lending, distance education, user-generated content, documentary film-making, and creation of new digital devices. The leaked US chapter contains no provision calling upon countries to adopt limitations and exceptions. However, there is a place holder for such provisions. The place-holder should be replaced with minimum mandatory limitations and exceptions.

While, past practice in international IP agreements has been to permit, but not require, countries to adopt limitations and exceptions, the TPP should break from this precedent. Such an approach is essential, as provisions calling for mandatory limitations and exceptions would ensure that countries have the confidence and incentive to adopt limitations and exceptions that would provide a balance against the onerous rights regime they would be required to adopt.

First, obligations to provide for high levels of IP protection would create great uncertainty about the scope of TPP compliant limitations and exceptions. While borrowing U.S. limitations and exceptions may give some comfort, such an approach may not suit the domestic needs of the all TPP countries. For instance, the distance education provisions of U.S. law may prove to be too limiting or resource intensive for some countries. These countries may hesitate to adopt different, more flexible models.

Second, the requirement to bring domestic laws into compliance with the TPP within specified time frames is likely prevent many of the TPP countries from devoting the necessary time and energy to carefully consider a limitations and exceptions regime.

Mandatory limitations and exceptions requirements with in the TPP would avoid these dangers. In order to ensure that the limitations and exceptions regime is sufficiently flexible to suit different local needs, these provisions can be sufficiently general. For instance, they may list the purpose of the limitation or exception and may specify the general contours of the provision leaving the details of implementation to each country. In addition, these provisions must preserve room for countries to adopt into their laws flexible limitation and exception provisions, including provisions like the U.S. fair use provision.

The provisions contained in Art 10.3(2) and (3) of the Transpacific Strategic Economic Partnership provide a good model for limitations and exceptions provisions that may be incorporated into the TPP. Following this model, Public Knowledge has proposed a draft text for a limitations and exceptions provision in the TPP. A copy of the text is annexed to this paper.

[1] Article 4(1), leaked draft

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