There are any number of controversial proposals in the leaked text of the Trans-Pacific Partnership (TPP) chapter on intellectual property. Here’s one that’s not getting enough attention: the TPP appears to contain yet another attempt to undermine "termination rights," which grant artists the ability to regain control over copyrights they've assigned away after 35 years.
Termination rights are, under U.S. law, an inalienable counterweight to the power imbalance built into many content industry contracts. Not surprisingly, those same industries have been pushing for years to eliminate these rights, including a notorious 1999 incident where a Congressional staffer, later hired as an RIAA lobbyist, snuck anti-artist language into an entirely unrelated bill.
Termination rights aren’t the sexiest part of the copyright scheme, but they matter for artists—especially musicians. But if a trade agreement mandates the unencumbered contractual transfer of economic rights without legal limitations—as contemplated in the TPP—then existing rights granted to artists under U.S. law could be deemed out of compliance.
How Musicians Can Take Their Copyrights Back
Artists and other creators transfer their copyrights all the time: musicians, for example, will assign some copyrights to their label, usually in exchange for an advance and agreed-to royalties. These contracts have been critiqued for perpetuating a huge power imbalance between the artist and the recording industry. Termination of transfer gives artists—as in, the original holder of the copyright, before it is assigned to anybody else—a way to get out of those deals. Thirty-five years after publication, the original copyright holder can terminate the transfer of rights and once again claim exclusive rights to her work.
The Recording Industry's Efforts to Kill Termination Rights
Record companies have long been concerned that as the termination rights became available, artists would try to get out of deals they deemed unfair. That's come to a head in 2013, the 35th year since the Copyright Act came into effect in 1978 (and so the first time artists have been able to take advantage of these termination rights). Victor Willis of the Village People successfully terminated the copyright transfers of many of his recordings, including “YMCA,” but for many musicians, securing termination has been a difficult and litigious affair, fraught with legal technicalities. For example, in 2010, a court found that Bob Marley’s pre-1978 recordings were not entitled to termination, denying his family the chance to reap the benefits of owning copyright in many of his now-iconic songs.
Why the complexity? After all, termination rights are supposed to be inalienable: according to the statute, any contract provisions waiving these rights is unenforceable. To borrow language from the TPP, U.S. law does not allow “free” and “separate” transfer of “that right by contract.” But termination rights are also limited in nature: they are not granted to employees that create works within the “scope of their employment,” or to independent contractors who create contractual “works-for-hire”—which are limited to a very specific, enumerated list within the Copyright Act.
But that list does not include sound recordings. Thus, the recording industry's attempts to restrict termination rights have primarily taken two forms: either challenging termination rights directly, or changing the definitions of things, by reclassifying sound recordings as works-for-hire, musicians as employees, or (seriously!) albums as "compilations" instead of individual songs—each of which would seriously restrict the ability of musicians to exercise termination rights.
In 1999, for example, a Congressional staffer named Mitch Glazier took the reclassification route by surreptitiously adding a provision to an unrelated bill that amended the Copyright Act to include sound recordings as works for hire. The bill passed, and just three months later, the staffer was hired by the RIAA. The ensuing outrage from artists resulted in a rare legislative reversal: the Glazier amendment was repealed.
TPP as New Weapon of Choice
The section of the TPP labeled QQ.G.9 appears to be a more direct challenge to termination rights. It says:
Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, or phonogram: may freely and separately transfer that right by contract; and by virtue of a contract, including contracts of employment underlying the creation of works, performances, and phonograms, shall be able to exercise that right in that person's own name and enjoy fully the benefits derived from that right.1
The termination right, of course, is a limit on free transfer. As a result, instead of a narrow attack on the termination rights of musicians by reclassifying their works as “works-for-hire,” the text here could eliminate termination rights for everyone. It is an open question whether QQ.G.9 would actually mandate such a significant change in U.S. law, but it is worth noting that the provision specifically targets “phonograms”—legal jargon for sound recordings. Furthermore, an addition proposed by Chile seems to have been designed to mitigate the possibility of broad scale legal changes, leaving us concerned about the ramifications of the current language.
Was this TPP provision written to finish the work started fourteen years ago? The RIAA (which still employs Mitch Glazier) has certainly been influential in the TPP negotiations, and has well-documented ties to the US Trade Representative’s office. But we have no way to know for sure, and it is possible that QQ.G.9 is only intended to lay the groundwork for the U.S. Trade Representative to place similar language in the still nascent Trans-Atlantic Free Trade Agreement and erode the robust set of inalienable rights present in EU copyright.
We Need Transparency
Regardless of the intent behind the provision, it is clear that the lack of transparency regarding the TPP is a problem. In 1999, much of the outrage was directed at the manner in which the Glazier amendment was added to an unrelated bill—“No hearings were held, no public debate took place, and no member of Congress sponsored the act[ion].”
When intellectual property policy is taken up in the trade context, that very lack of democracy and transparency becomes the standard. The Trans-Pacific Partnership Agreement—indeed most bilateral and plurilateral trade agreements—are negotiated in secret by unelected officials. Citizen stakeholders are locked out of discussions, the text is inaccessible to the public until it is finalized, and the final product is often railroaded through Congress with little more than a rubber stamp thanks to a mechanism called Fast Track Authority.
The game has been rigged so that the options are limited for those who are affected by QQ.G.9. Indeed, we owe a debt to WikiLeaks: if they had never published the text of the agreement, opposition to the bill would be based on much shakier information. But leaks are not a substitute for transparency and accountability.
The Trans-Pacific Partnership is inherently anti-democratic, and is being used as a forum to rehash and launder in policies that have already been blocked by democratic processes. What QQ.G.9 shows is that the secrecy surrounding the TPP is not just a threat to the Internet and to Internet users. It is a threat to creators, musicians, artists, and copyright-holders as well.
Sarah Jeong is a Harvard Law student who previously worked with EFF's International team. Follow her on Twitter.