Trans-Pacific Partnership Leaks Again – Copyright Limitations and Exceptions

There’s been a new development with the Trans-Pacific Partnership (TPP). A portion of the agreement detailing the copyright terms and exceptions has been leaked. This is certainly of particular interest given that the US reacted to the defeat of ACTA (Anti-Counterfeiting trade Agreement) by saying that there would be new limitations and exceptions inserted into the agreement. How has the agreement really turned out in this area? We investigate.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

There were many rights holders who may have believed that ACTA would usher in a new era of restricted copyright with laws considerably tipped towards multinational corporate entities in an unprecedented way. ACTA may not have been the be-all end-all agreement that would accomplish everything these corporate entities were hoping for, but it would be a start of an unprecedented wave of reforms. What happened was that ACTA did indeed usher in a new era surrounding copyright – an era where society can fight back against agreements that would unfairly restrict the local population and push out unwanted laws under the guise of it simply being a “trade agreement”.

The tide really turned when, after months of protest and campaigning by various societies within Europe, ACTA was ultimately rejected by the European Parliament. It was a move that many say was the final fatal blow to the agreement. Even though other countries outside the European Union had yet to take a position, some countries are showing signs of backing away in light of the decision by Europe.

Of course, the effects were not just limited to one agreement. In the Comprehensive Economic Trade Agreement (CETA), another agreement between Canada and Europe, similar concerns were raised over the overly restrictive copyright provisions thanks to a leaked copy that surfaced online. In light of the defeat of ACTA, John Clancy swiftly denied that the contents of the leaked document was basically a duplicate of the rejected ACTA and said that the contents of the leaked document do not reflect the current version of CETA. No doubt, there may have been internal fears that the momentum against pro-corporation/anti-consumer copyright laws would spill over into other agreements.

The TPP was certainly not spared either. Amongst many advocates for balanced copyright laws, the TPP was seen as largely a wishlist of everything corporate entities ever wanted in a copyright law – a three strikes law and site blocking to name two possibilities that were so vigorously fought against around the world with varying degrees of success in different countries. Many say that the defeat of ACTA triggered some serious scrambling by negotiators to retool the copyright provisions within the agreement. The natural fear, of course, is a similar backlash hitting the TPP over concerns of overly restrictive copyright laws. So, in response, US negotiators said that they were adding in consumer protections to the agreement as well. It was pretty obvious that the US wanted to quell fears in an effort to take some heat off of the TPP.

So, were negotiators true to their word in including consumer protections to the TPP? I would argue that what was suggested back then didn’t go anywhere near far enough, but we’ll see how this particular band-aid solution fared in reality thanks to a fresh leak.

The leak comes from KEI Online which featured the text of the copyright limitations and exceptions.

The first section I thought was interesting was this:

2. Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]

This is certainly consistent with trying to achieve some level of sanity into the world of copyright laws. This certainly resembles some of the exceptions that are contained within US copyright laws with respect to Fair Use. So, so far, off to a good start.

[NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]

The language here is a little tricky, but the key word here is “for” as in “protections for technological protections”. By this language, it sounds a lot like the general rule for the new copyright laws in Canada and a bit like anti-circumvention laws in the United States as seen in the DMCA. The general rule is that you can exercise these limitations so long as it doesn’t circumvent a copy protection measure (whether it’s called DRM (Digital Rights Management) or TPM (Technological Protection Measure). There were certainly efforts to provide balance with respect to DRM in the United State like how teachers were able to provide snippets of movies to a class without breaking a DRM legally. Canada is now legally in the unfortunate position of having to start from square one for undoing all the damage anti-circumvention laws will cause. Americans will no doubt have many fun stories to tell with respect to how anti-circumvention laws have really caused chaos.

What I do find interesting in this particular paragraph in the TPP is the fact that this is optional. So how that will play out in the various countries that have signed on to this agreement might be anybodies guess at this stage should this provision remain within the agreement as is.

A lot of this is hinging on paragraph one which reads:

1. [US/AU: With respect to this Article [(Article 4 on copyright) and Article 5 and 6 (which deal with copyright and related rights section and the related rights section)], 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.]

KEIOnline has the following comments on this:

What was presented by USTR with great fanfare as language on “balance in providing limitations and exceptions” is preceded with this language which actually makes the TPPA more restrictive than the TRIPS or the WCT: “Subject to and consistent with paragraph (1).”
Among other things, this puts copyright exceptions for “criticism, comment, news reporting, teaching, scholarship and research” under a restrictive 3-step test, even in the areas where the Berne Convention and the TRIPS have different standards for exceptions, such as fair practice, or a total green light.

Judging by the language I’ve seen, I suspect that one could interpret this language as having the potential for copy protections legally overriding any forms of what the US might call “Fair Use”.

More broadly speaking, I think US negotiators tried to say that consumer protections are in the TPP, but withheld a key point that the consumer protections that are in there are actually more restrictive. It was a nice way to bend the truth. It’s like a hostage taker saying that he’d release one of the hostages if his demands are met, then when those demands are met, he releases one of the hostages in a body bag.

To dial this back even further, these exceptions are practically meaningless in the face of the most restrictive regimes already in place within the TPP. We already analysed the TPP back in June and we noted the anti-circumvention measures as being extremely broad with limitations being extremely narrow. Moreover, the TPP also has a three strikes law and website blocking built into it.

I would argue that even if the exceptions were beefed up to the point of being able to circumvent a DRM for fair use purposes, the exceptions are pretty much meaningless in the face of a three strikes law and site blocking.

Yes, consumer protections are in there, but the protections are more of a case of authority figures kicking the consumer while s/he is down.

(via EFF)

Drew Wilson on Twitter: @icecube85 and Google+.

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