Civil Society Statement circulated by Haochen Sun, Associate Professor of Law and Director, Law and Technology Centre, The University of Hong Kong. Click here to sign the Statement. Click here to download the Statement.
Introduction: The Regional Comprehensive Economic Partnership (RCEP) aims to conclude a comprehensive agreement that promotes free trade and investment among Australia, China, India, Japan, New Zealand, South Korea and member states of the Association of Southeast Asian Nations (ASEAN). As a hallmark of this proposed agreement, the RCEP Intellectual Property (IP) Chapter will set out a host of minimum standards for IP protection in the sixteen participating countries.
We are deeply concerned about the copyright protection standards proposed for the RCEP IP Chapter. They may cause unintended effects of stifling creativity, free speech, and economic growth. We urge that the new rounds of RCEP negotiations reconsider those standards by applying the following three principles:
- Integrate the public interest as a core value for copyright negotiations.
- Increase transparency of negotiations for the public interest.
- Institute changes in copyright provisions for the public interest.
Guided by these three principles, RCEP negotiations would produce the largest mega-regional free trade agreement to procedurally and substantially protect the public interest in copyrighted works. The RCEP copyright provisions, therefore, stand to benefit nearly 50% of the world’s population, who live in the sixteen RCEP participating countries.
Principle One: Integrate the Public Interest as a Core Value for Copyright Negotiations
At the national, regional, and international levels, copyright law serves not only the private interest of copyright owners, but also the public interest of society at large. It protects the economic and moral interests of copyright owners, and simultaneously affords the public with sufficient freedom in creating new works, disseminating information and accessing knowledge. The Preamble of the WIPO Copyright Treaty (WCT), therefore, stresses “the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information…”
RCEP negotiators should integrate the public interest as a core value for setting copyright provisions by taking the following actions:
- Scrutinize current protection of the public interest in using copyrighted works: A committee consisting of negotiators and copyright experts should be set up to identify myriad public interests in using copyrighted works in RCEP participating countries. The committee will further consider whether and how the RCEP should promote those interests.
- Examine public interest mandates under international copyright treaties: The committee should carefully study the extent to which international copyright treaties obligate the RCEP participating countries to protect the public interest. For example, Articles 7 and 8 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) mandate protection of the public interest in technological innovation and diffusion and market competition.
- Consider public interest mandates under international human rights treaties: The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights protect human rights that bear direct relevance to copyright protection. These human rights mainly protect freedom of opinion and expression and promote education, participation in the cultural life of the community, enjoyment of the arts, and sharing of scientific advancement and its benefits. The committee should consider the relevance of these human rights obligations to the RCEP.
Principle Two: Increase Transparency of Negotiations for the Public Interest
Procedurally, the transparency of negotiations is key to ensuring adequate protection of the public interest by the RCEP in general and its copyright provisions in particular. The RCEP will affect the lives and livelihoods of billions of people not only in the RCEP participating countries but across the globe. The public, therefore, deserves a democratic right to know how the RCEP negotiating process has and will have adopted provisions protecting the public interest. However, the past sixteen rounds of RCEP negotiations have yet to result in the release of any substantive negotiating texts for public scrutiny.
Against this backdrop, we urge that the transparency of the new rounds of RCEP negotiations should be increased through the following public consultation procedures:
- Release negotiation information: The RCEP should take affirmative measures to make all negotiating texts and other relevant documents publicly available as soon as possible. For this purpose, the RCEP should learn from the example of the World Intellectual Property Organization (WIPO), which carried out transparency measures that facilitated the successful conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. WIPO publicly released draft negotiating documents promptly. It also publicly webcast the negotiating process.
- Strengthen stakeholder engagement: When considering critical issues, the RCEP should open up channels through which the relevant stakeholders can submit their opinions. Stakeholders may include not only business groups but also civil society representatives. When necessary, the RCEP should organize public hearing meetings where various stakeholders can discuss the merits and demerits of draft proposals and negotiators can explain decision-making processes.
Principle Three: Institute Changes in Copyright Provisions for the Public Interest
The RCEP will culminate in a set of provisions that protect copyright. Against this backdrop, RCEP negotiators should also endeavor to craft provisions to protect the public interest primarily by carving out limitations and exceptions to copyright and setting up a safe harbor system for Internet service providers.
Copyright limitations and exceptions, such as fair use and compulsory licensing, guarantee that the public interest in creativity, education, and free speech can be promoted through the necessary uses of copyrighted works. RCEP negotiators should adopt a hybrid approach to crafting copyright limitations and exceptions as follows:
- Liberally apply the three-step test¹: The new rounds of RCEP negotiations should make every endeavor to address concerns that the three-step test may rule out limitations and exceptions that are open-ended and flexible. It should be made clear that nothing in the test shall prevent the introduction or retention of limitations and exceptions for legitimate purposes such as criticism, comment, education, news reporting, parody, research, and facilitating access for persons with disability.
- Expressly recognize certain limitations and exceptions: The new rounds of RCEP negotiations should also acknowledge crucial limitations and exceptions such as temporary reproduction, text and data mining, and regional exhaustion of copyright.
There is also concern that Internet service providers are at risk of being held secondarily liable for copyright infringements committed by users. As information intermediaries, Internet service providers play an increasingly vital role in protecting the public interest in the digital age. They provide a wealth of services that support the smooth and speedy flow of commercial, cultural and technical information. Those services include Internet access, search function, social media, content platform, e-commerce, and cloud computing.
In that regard, the new rounds of RCEP negotiations should consider adopting a fair, transparent and streamlined system capable of effectively and expeditiously stopping online copyright infringing activities, such as a safe harbor system that mainly utilizes a notice-and-take-down procedure. RCEP negotiators should scrutinize the following key issues:
- Exempt Internet service providers from legal liability for the copyright infringement that they do not initiate, control, or direct by delineating the scope of qualified Internet services and discharging Internet service providers’ obligations of proactively monitoring their services;
- Include an effective counter-notice procedure requiring that Internet service providers properly restore materials they have removed; and
- Impose penalties on parties who deliberately abuse the notice or counter-notice procedure.
In the digital age, copyright protection deeply affects the interests of authors, creative industries, users and society at large. Therefore, the RCEP should urgently adopt and follow the three public interest principles proposed in this statement to reshape its landscape of copyright protection.
¹The three-step test has been established by the Berne Convention for the Protection of Literary and Artistic Works, the TRIPS Agreement, and the WCT as a core minimum standard for international protection of copyright. According to the negotiating proposals, the RCEP appears to have adopted the three-step test as well. By nature, the three-step test constrains legislative discretion to carve out limitations and exceptions to copyright. For example, Article 13 of the TRIPS Agreement requires that member states “confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”