Notes from Internet Stakeholder Briefing @ TPP Melbourne

On Friday March 2 (Australian time), the Australian Digital Alliance, NZRise, Knowledge Ecology International, Computer & Communications Industry Association, Internet NZ and New Zealand Computer Society hosted a briefing for negotiators on the TPP IP chapter and internet policy. These notes summarize the inputs from the various speakers. They are just notes. My apologies for any transcription errors. Please do not quote the text as direct quotes from the speakers. I was authorized to share these by the hosts, but did not have the individual speakers review my summaries.

A.     Nicholas Gruen, CEO, Lateral Economics

This negotiation is being undertaken almost exclusively within the legal discourse by lawyers. But it is essentially micro economic policy. This is economic policy. We need lawyers to translate policy into good functioning law. But it does not make sense to exclude policy inpuits from the process. This economic policy and its deliberation requires open and transparent processes where policy may be examined.

Trade and IP policy tends to be driven by the people with a lot to gain, against the interests of broad numbers of people who each loose a little.

From an economic point of view, you get all the benefits from IP by the time the length of the benefit is in the teens (of years). Later, there is very little gain from lengthening of IP. In copyright, you will not obtain a single new work from the lengthening of terms from, e.g. 70 to 90 years. Countries are essentially being harassed to extend IP in various ways, few of which are actually justified.

We need broad fair use exceptions. We need broad exceptions to ISP liability for helping people find websites. Or for cache. We have agreed previously to extend copyright to terms that are not justified. It should be brought back to where it was. We should set terms according to economic principles.

We should base IP law on unarguable propositions.

-There should be no retrospective extensions of IP. Offense to rule of law and economically unjustified.

-There are areas where IP should not extend. Orphan works and use of legit purpses such as seach and cache.

-The positions of negotiators should be taken in public. Everyone I know is embarrassed about the secrecy of this negotiation.

-Extensions of IP should not procede without independent economic analysis of the effect on users and producers. This principle is enshrined in Australia. We have legislation which says the govt cannot change tariff rates without a public report on the costs and benefits. That principle should be adopted nationally and internationally.

 

B.      Vikram Kumar, Chief Executive, Internet NZ

The internet is a way for all of us to do better.

Let me reflect back on two dates in history.

In 1865 the UK passed the red flag act. In response to the first horseless carriage. Required that maximum speed was 6kph and manned by 3 people, including walker with red flag in front. The intent was to slow down change. Car industry shifted to Germany.

How will you manage today what we barely look at in our current mindset. Where is the tipping point between the old and the new? We are there now. This is the first time you see average users taking to the streets.

1473. 18 years after modern printing press. 1^st bibles coming out in Europe. Today, we are 18 years after world wide web. 1473 required only authorized bibles. And hat to comply with index of allowed books from church. Church was powerful. The establishment. The press led to a shift in modern society. Renaissance. Yet in 1473, who would back the press over the church.

You have a chance to back the internet without breaking it.

Covering transient copies with copyright will break the internet.

C.      Carolyn Dalton, Executive Director, Policy Australia

I have worked in governments and as a lawyer.

I want to discuss some of the risks if we go wrong with the decisions before us.

Timeline:

TRIPS, DMCA, WCT, AUSFTA, ACTA leak, ACTA public release, TPP

There are trends up in rights protection (DMCA, AUSFTA, ACTA leak) and trends lower toward less specificity (TRIPS, WCT, ACTA final)

Which trend is more beneficial? More open ended or more specific? I suggest the former – the more open ended trend is better in this time of rapid technological change.

In a very short time, the world as we know it has changed. There was no search when we made TRIPS. There was no google when we did DMCA. No Youtube when we did AUSFTA.

We all talk about the importance of balance. There are at least three interests – users, producers and intermediaries. The intermediaries part is new.

We need a more nuanced balance that considers even more interests. Economic, trade, innovation, education, telecommunications policy (broadband), etc.

What is the best way to promote creation and innovation? What is the right copyright framework to enable the next google or facebook in any country? How do we ensure limitations and flexibilities to make sure internet is not broken? How do we ensure flexibility to respond to emerging technologies?

Key issues:

Temporary storage, transient copies.

Caching, indexing, thumbnails, “technical underpinnings of the internet.”

Intermediaries. ISPs, platforms like youtube, etc. The law is very unsettled internationally. DMCA is highly technical. But set in 1996. Doesn’t recognize the emergence of bit torrent or p2p or the emergence of social media. The ability to respond to the future in this state of flux requires the path of lower specificity. The role of intermediaries is quite complex. There are different levels of knowledge and control. 60 hours of video are uploaded to youtube every day. To micro manage this area based on what we know now is very risky.

Consumer rights and citizen rights. Criminalization, due process, content choice, parallel importation.

Consumer/citizen confidence. If consumers are going to respect the law, the law has to respect and reflect their current uses. We cannot turn every internet user into a pirate.

These issues are covered more deeply in a paper by Kim Weatherall.

Prior to AUSFTA, a typical policy question would include a large amount of interest consultation and begin with the question of what is good for the country. After AUSFTA, the policy question starts with whether an idea is FTA compliant rather than whether it is a good idea. This was true, e.g., in a comprehensive review of australian broadcasting law. Many good ideas were taken off the table. It inhibits a holistic policy review.

 

D.     Jonathan Band, CCIA

Traditionally we thought of a balance in IP. But this is a world where every user is a creator. The internet is a world where everyone is a publisher. Everyone has a printing press.

The vast majority of content, e.g. youtube, is non-infringing — at least in the US, would be considered non-infringing.

What agreement will be worth the label of a 21^st century trade agreement?

CCIA has a proposal for the minimum requirements for what must be in this agreement. It contains substantive footnotes showing where we got the proposals. It comes from US law, FTAs, EU law, other TPP member countries, etc. There is nothing really new here.

There already is a high degree of harmonization. Well you can say why do we need to include it? First, because every member may not have every L&E. And also that this agreement is not going to stop with the members in this room. So the idea is come up with a template or roadmap for the internet economy going forward.

Issues covered in the proposal include:

-Using the 3-step test an affirmative duty to adopt limitations and exceptions that meet it.

-A more specific exception for temporary copies that don’t have independent economic significance. An agreement that does not include an exception for temporary copies is not a 21^st century agreement.

-Flexible exceptions – there needs to be a degree of flexibility. You can’t only have specific exceptions. Whether you call it fair use or fair dealing. We use another term – based on Berne and the concept of fair practice (Art 10).

-Parallel importation. In the world of internet, you need to be looking at international exhaustion.

-TM fair use.

-Proportionality of penalties.  We took language from ACTA there.

-Non-profit and other exceptions to pre-established damages (like US Copyright).

-On safeharbors, we support DMCA safeharbors.

-On the issue of electronic commerce: we have a provision for a rule similar to sec 230 of communications decency act for freedom of liability for intermediaries, except for IP issues.

The point here is that there are provisions that need to be included in TPP, and we hope these specific proposals help.

E.      Daniel Spencer, NZ Rise

I am a technologists. I did not want to study copyright law.

Please do not burden our future with policies based on the past.

Thank you to the partner organizations.