Earlier this summer, Public Knowledge’s Harold Feld penned a celebratory op-ed piece that declared the MPAA and RIAA lost “big” when the United States Trade Representative (USTR) publicly stated it would back limitations to copyright during negotiations for the Trans-Pacific Partnership (TPP). Feld called it a “stunning turnaround” that the international agreement “would now include a provision in the intellectual property (IP) chapter recognizing the importance of ‘limitations and exceptions’ to copyright and embracing the international three-part test for what constitutes suitable limitations and exceptions.”
But now, a leaked draft of the TPP has surfaced online, one that indeed embraces the international three-part test for copyright limitations and exceptions, and groups like Public Knowledge are backpedaling. Both the EFF and KEI claim the language in the draft “puts fair use at risk” and favors “rightsholders” at the expense of the public (which the EFF and KEI, presumably, claim to speak on behalf of).
The TPP is a free trade agreement currently being negotiated between nine countries: Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States. According to the USTR, the agreement “addresses new and emerging trade issues and 21st-century challenges” -- including not only intellectual property issues, but also issues related to industrial goods, agriculture, and textiles.
It’s premature to say whether these leaked provisions of the TPP are indeed official proposals, but they are consistent with the USTR’s actual statement made this past July. The USTR noted, “For the first time in any U.S. trade agreement, the United States is proposing a new provision, consistent with the internationally-recognized ‘3-step test,’ that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.”
But predictably, the always-dissatisfied-with-copyright crowd has found a reason to be dissatisfied. Ars Technica reports that, “The US and Australia, for instance, proposed what entities like the EFF and KEI fear could be a rightsholder-friendly three-step test to determine what exceptions to copyright are allowable.”
This fear is completely unfounded: the “three-step test” for exceptions and limitations has been a feature of international copyright treaties since the Berne Convention was ratified in 1886. Today, nearly every country in the world is a party to the Berne Convention, including all the negotiating parties to the TPP. This “three-step test” allows a wide variety of limitations and exceptions to copyright, provided they do not conflict with the normal exploitation of a work or unreasonably prejudice the legitimate interests of a creator. Similar language is found in TRIPS and other, more recent, trade agreements.
So why is this a problem? KEI attempts to thread the needle to show that the language of the proposed three-step test in the TPP is somehow different from three-step tests in existing international agreements, despite their similar language. But the organization can do little more than make vague assertions about unspecified “controversy among experts.”
The fact is, authors and creators rely on fair use every day and celebrate limitations that protect criticism, comment, news reporting, teaching, scholarship, and research. These limitations have been part of US copyright law since its early days and preserved in international agreements for decades.
I’m at a loss to explain how drafting a trade agreement to conform with existing treaties that have been in place for years can be characterized as, in the words of Ars Technica, “more restrictive.” It is telling, perhaps, that a joint public statement by Professors Peter Jaszi, Michael Carroll and Sean Flynn of the Program on Information Justice and Intellectual Property -- referenced by the EFF and KEI -- even admits that this interpretation of the three-step test “is far from inevitable – or even plausible”.
What the leaked TPP provisions show is not an unprecedented expansion of undeserved rights, but an affirmation of the balance between private rights and public benefits that has evolved over the years. Behind the implausible interpretations lies the same old story from these groups: the exclusive rights of creators can never be too weak, and there will always be some flaw in any effort to ensure these rights remain protected.
For more news and analysis of copyright law and related issues, visit Terry's blog Copyhype.com