The below is a joint statement from EFF, Knowledge Ecology International, Public Knowledge, Public Citizen, and others. See below for the full list of signatories.

The Office of the U.S. Trade Representative announced a new copyright proposal today for the Trans-Pacific Partnership (TPP) negotiations. One part of the proposal is a "3-step test" that may restrict copyright exceptions like fair use.

The USTR says that its proposal - the text of which is still secret - will include provisions that may mimic Article 13 of the WTO TRIPS accord, which says:

Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

We are concerned that, depending on the actual text and its scope and interpretation, the provision in the TPP will restrict fair use and other copyright exceptions and limitations crucial for the progress and access of culture, science, education, and innovation.

In a 2000 dispute [pdf] involving an exception to copyright for the United States, the WTO has defined the 3-step test narrowly and restrictively, making it difficult to justify a statutory limitation or exception to the exclusive rights of copyright, in the areas where the WTO says the test applies.   

The risk is that (a) the 3-step test is extended to another fora, and (b) more importantly to exceptions now outside of the 3-step test.  

The 2000 WTO interpretation has been criticized in the Max Planck Institute Declaration on a balanced interpretation of the three-step test. 

According to the Max Planck Declaration:

“The Three-Step Test has already established an effective means of preventing the excessive application of limitations and exceptions. However, there is no complementary mechanism prohibiting an unduly narrow or restrictive approach. For this reason, the Three-Step Test should be interpreted so as to ensure a proper and balanced application of limitations and exceptions. This is essential if an effective balance of interests is to be achieved.”

It is vitally important that exceptions and limitations to copyright be protected in international trade agreements.

While we are supportive of efforts to protect and expand the use of copyright exemptions in certain areas, such as to protect education and facilitate the development of new Internet services, a provision in the TPPA that includes a restrictive 3-step step may work in the opposite direction of what is needed.

It is critical to ensure that any language introducing the three-step test not only include reference to the Max Planck Declaration to ensure that the test is not so narrowly construed, but also to ensure that it is without prejudice to other existing limitations and exceptions that fall outside this test that are included in international conventions.  In particular, we note that the Berne Convention and the Rome Convention both have several articles that specifically provide for copyright limitations and exceptions without a 3-step test.  

For press inquires, please contact:

* Electronic Frontier Foundation
   Carolina Rossini
   International Intellectual Property Director

* Knowledge Ecology International
   Krista L. Cox
   Staff Attorney

* Public Knowledge
   Rashmi Rangnath
   Director, Global Knowledge Initiative

* Public Citizen
   Burcu Kilic
   Legal Counsel, Global Access to Medicines Program

Additional signatories:

* OpenMedia.Ca (Canada)

* Derechos Digitales (Chile)

* Lisa Petrides, President of Institute for the Study of Knowledge Management in Education (ISKME)

* Ken Schafer of Tucows


* Jean-Claude Guédon, Open Access Expert

* Dan Gillmor, Academic of Digital Media Entrepreneurship

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