As the Trans Pacific Partnership creeps toward an end game (which appears far off) it may be worth spending more time discussing positive proposals for amending the proposal in various ways. I have previously written on ideas for positive proposals from the perspective of the non-U.S. parties, both in the form of a short list of proposals and in a longer jointly-written article. This note focuses on copyright proposals for the TPP that should be of interest to U.S. negotiators in order to bring their proposal in line with their expressed policy goals as well as with recent copyright reform proposals discussed in Congress and by the Librarian of Congress.
I. Proposals to Clarify Present Understandings
The following proposals were made in an academics letter to USTR Ron Kirk following meetings with U.S. officials seeking clarifications of the intent of U.S. proposals in the TPP. Each of the proposals suggests changes to the U.S. TPP proposal as it has been leaked to the public in order to bring the text in line with how officials describe the its intentions. In each area, a specific present U.S. policy would be better protected in a clarified TPP proposal.
A. Savings Clause for Berne/WIPO Compliant L&Es
Proposal
Clarify that nothing in the TPP, including in the crafting of its three-step test, further limits Parties’ discretion to implement limitations and exceptions that comply with the existing multilateral treaties on copyright, including Berne, WCT and WPPT, including the Agreed Statements to those instruments; add language from the WIPO Internet Treaties Agreed Statement to WCT Article 10 (see, e.g., Chile FTA).
Justification
As recounted in the academic letter to Kirk September 8, 2012:
Consistent with other Free Trade Agreements, the U.S. proposal would likely “confine” limitations and exceptions to exclusive rights under copyright[.] This language, on its face, would apply to limitations and exceptions that are currently not subject to the similarly worded three step test in Article 9 of the Berne Convention for the Protection of Literary and Artistic Works. The United States considers, however, that these so-called Berne “small exceptions” for quotations and other purposes are in compliance with the three-step test in its TPP proposal, were it to be applied to them.
. . .
The United States intends its proposals in the TPP and other trade agreements to be fully consistent with the World Intellectual Property Organization Internet Treaties (i.e. the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty), including all of the Agreed Statements.
Examples
P4 Art. 10.3(4) (“The Parties may establish limitations and exceptions in their domestic laws as acceptable under the Berne Convention for the Protection of Literary and Artistic Works (1971), the TRIPS Agreement, the WCT and the WPPT. These provisions shall be understood to permit Parties to devise new exceptions and limitations that are appropriate in the digital environment.”); Chile FTA (including agreed statement to WCT Art 10).
B. Clarify that 3-Step test is not applicable to definition of scope of rights
Proposal
Make clear that the three-step test does not apply to definitions of the scope of rights, as opposed to limitations of an exclusive right already defined.
Justification
As explained in the September 2012 letter to Kirk:
The United States proposed three-step test would apply only to limitations and exceptions to exclusive rights granted to copyright owners rather than to provisions that delineate the scope of such rights. For example, the absence of an exclusive right of private performance of a copyrighted work in U.S. law would not be a limitation or exception subject to the three-step test.
C. Confirm discretion to define fixation and “copy”
Proposal
Particularly in reference to any provision on temporary copies, clarify the understanding that parties remain free, through local legislation and interpretation, to define when a transitory use of a work is insufficiently fixed so as to constitute a copy.
Justification
As noted in the September 2012 letter to Kirk:
The United States takes the position that nothing in existing U.S. copyright law, as interpreted by the federal courts of appeals, would be inconsistent with its proposed three-step test. This would include, for example, the transformative use standard recognized in cases such as Bill Graham Archives v. Dorling Kindersley Publishing, Inc., 448 F.3d 605 (2d Cir. 2006) and the holding in Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), concerning the definition of a “copy.”
D. Carve out IP Definition and L&E from Investor-State Dispute
Proposal
Carve out definitions of scope of IP protection and limitation and exception issues from investor-state dispute mechanisms
Justification
The taking of intellectual property is made a potential issue for investor-state dispute resolution in the investment chapter. This raises the troubling possibility that companies could appeal local court rulings or legislative definitions to international courts as a taking of their IP rights. The Uruguay PMI dispute is one case in point. As the September 2012 letter notes:
It is not the intent of the United States that the Investor-State provisions of the TPP would apply to provide causes of action for investors through the intellectual property chapter that could be used to appeal to an international tribunal fair use or other interpretations of the U.S. Copyright Act by U.S. courts. Compliance with intellectual property obligations in international agreements has been a matter of state-to-state consultation and dispute resolution, and the United States does not intend to alter that process in the TPP.
E. Broaden ISP Safeharbor to reflect US law
Proposal
Broaden the protection in the safe harbor provision for ISP “storage” to include “dissemination.”
Justification
As recounted in the September 2012 letter:
The United States intends for provisions that use language from the U.S. Copyright Act in existing bilateral Free Trade Agreements to which the United States is a party, and in the TPP, to be interpreted as they have been by federal courts in the United States. For example, the safe harbor for internet service providers in other FTAs applies only to “storage” of information at the direction of a user. But U.S. interpretations of the this same language apply the safe harbor beyond the narrow and literal issue of storage to a broader range of user activity, including, for example, the dissemination of information using the network. It is not the intent of the United States to limit any Party’s national safe harbor to one that is literally restricted only to “storage.”
F. Re-order “Balance” and 3-Step Proposals
Proposal
Re-order the U.S. “balance” and “3-step” proposal to move balance objective first; remove “seek to.”
Justification
The promotion of balance is the primary objective of limitations and exceptions and therefore should go first in the ordering of the norms. Eliminating the “seek” qualifier is necessary to guarantee the outcome, not just the effort, to create balanced copyright systems. The provision is useful in supporting the 3-step legality of flexible limitations and exceptions (e.g. fair use).
II. Proposals to Alter Prior FTA Standards Between Parties
U.S. law and policy makers are considering a major overhaul of copyright legislation that would require more flexibility in some US FTA provisions between the parties in the TPP than now exist. The fact that FTAs require changing so soon after their promulgation (many FTAs requiring change are not event fully implemented yet) should serve as a warning about the level of specificity appropriate for a trade agreement setting disciplines on domestic regulation. Any commitments in this area need a high level of generality — akin to that seen in the multilateral IP agreements — to ensure that countries have sufficient policy flexibility to adapt to changes in local policy needs and desires.
To accommodate these proposals, the following provisions for a TPP should apply as subsequent agreements between the parties that modify prior commitments on the same issues so that existing FTAs do not pose a barrier to planned policy changes in the U.S.
A. Copyright terms
Proposal
Change the minimum periods of terms to the Berne/WIPO standard of 50 years after the author’s death. As an option, the provision may provide that parties may protect works for terms of additional lengths with or without formalities or other reasonable conditions.
Justification
The U.S. Registrar of Copyrights has testified to Congress that U.S. copyright law should change to make minimum terms 50 years rather than 70 from the life of the author, with an extra 20 year period subject to a formality (e.g. a renewal application). See “The Next Great Copyright Act.” This policy would meet Berne and WIPO 1996 commitments, but would violate some existing FTAs as well as the U.S. TPP proposal.
B. Exceptions to TPMs
Proposal
In Technological Protection Measures, delete the listed exceptions (ACTA), or clarify that the listed exceptions are permissive (e.g. Chile FTA), and add that a Party may adopt or maintain appropriate limitations or exceptions to any TPM circumvention liability standard (e.g. ACTA 27.8).
Justifications
H.R. 107, 108th Cong (2003) proposed a fair use exception to DMCA TPM protection, which has been referred to favorably by the Librarian of Congress for consideration in U.S. Copyright reform. The White House and Senator Wyden (future Finance Chairman) has endorsed a permanent exception for phone network switching. The Librarian of Congress has proposed broadly reconsidering the permanent exceptions in US DMCA (Sec. 1201). WIPO Internet treaties are permissive in this regard.
Examples
ACTA 27.8 (giving broad discretion to adopt “appropriate” anti-circumvention exceptions); Chile FTA Art. 17.7.5(d) (permitting exceptions in “certain special cases that do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention”); Trans-Pacific Strategic Economic Partnership Agreement (P4) (parties may “establish provisions to facilitate the exercise of permitted acts where technological measures have been applied”) (note that P4 standard does NOT require adoption of TPM circumvention liability in first instance).
C. Parallel importation/Exhaustion
Proposal
Permit international exhaustion. (Note: none of the FTAs with TPP member countries have prohibitions on international exhaustion, but some other US FTAs do have such prohibitions, e.g. Jordan, Morocco).
Justification
Modification of FTA commitments on this subject is needed to accommodate the Supreme Court ruling in Kirtsaeng. See http://infojustice.org/archives/29043
Examples
FTAA Art. 4 ([4.1. This Chapter shall not affect the authority of each Party to determine the conditions under which the exhaustion of rights related to products legitimately introduced in the market by, or with the authorization of, the right holder shall apply.]); P4 (“Parties affirm that they may:(a) provide for the international exhaustion of intellectual property rights); TRIPS Art. 6.
D. Permit Internet Retransmission under Statutory License
Proposal
Alter current FTA provisions to affirmatively permit the use of statutory licenses to permit retransmission of television signals over the internet subject to reasonable compensation.
Justification
The United States has obtained obligations in some FTA’s, such as the U.S.-Colombia Free Trade Agreement, to prohibit adoption of statutory licensing for the retransmission over the internet of broadcast television signals. The U.S. Copyright Act currently contains such licenses for other media (i.e. cable and satellite television). Congress has held hearings on the potential desirability of similar licenses for internet service providers. Alteration of existing FTA standards is necessary to afford Congress the opportunity to address this policy matter as one of first impression.
