The following entry is authored by our Summer Legal Intern, Joan Blazich, a rising 3L at the University of North Carolina School of Law. Joan has a PhD in music and previously was a member of the North Carolina Symphony.
Yesterday, we posted a brief summary of the Trans Pacific Partnership, noting that there are a number of myths circulating on the internet about what the TPP will or won't do. One of the more common myths is that the TPP will drive up licensing costs for copyrighted material by protecting incidental copies.
This myth is based upon the language in Article 4: Copyright and Related Rights of the TPP, which states:
Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).
At first glance, this provision seems to be a new prohibition on temporary or incidental copies of sound recordings (phonograms). However, when examined in context, the point of this provision is simply to reaffirm that copyright holders enjoy exclusive rights in their work. This notion of absolute rights can be found in Section 106 of the Copyright Act, and in Chapter III of the WIPO Performances and Phonograms Treaty. By including this line regarding temporary storage, the TPP is simply reiterating that any copying of a copyrighted work is technically an infringement, including the incidental copying of music files that occurs through internet transmission.
It is worth noting that this exact same provision can be found in all other U.S. trade agreements. Each use of this provision in these trade agreements also contains an important footnote indicating that the “temporary electronic storage” language is merely part of the provision’s overarching message that the copyright holder enjoys absolute rights in the dissemination of his/her work. For example, the footnote accompanying Article 18.4 in the U.S.-Korea trade agreement states that each member party may adopt limitations and exceptions to the provision as needed for fair use purposes. To read and compare these copyright provisions in each of the U.S. trade agreements, please click here.
In sum, for legal users of copyrighted material disseminated over the internet, it is highly unlikely that this TPP provision will change how licensing fees are assigned. A combination of market forces and effective enforcement against infringement should continue to keep licensing fees reasonable.