August 3, 2012 | By Carolina Rossini

New Leaked TPP Text Puts Fair Use at Risk

EFF believes that it is vitally important that fair use and exceptions and limitations to copyright be protected in international trade agreements. But the United States Trade Representative (USTR) is putting Fair Use at risk with restrictive language in the Trans-Pacific Trade Agreement (TPP). The US and Australia are both proposing very restrictive text, and Peru is willing to accommodate the bad language. KEI reports on the leak of the negotiating TPP text on copyright limitations and exceptions.

“Limitations and exceptions are positive enabling doctrines that function to ensure that intellectual property law fulfills its ultimate purpose of promoting essential aspects of the public interest. By limiting the private right, limitations and exceptions enable the public to engage in a wide range of socially beneficial uses of information otherwise covered by intellectual property rights—which in turn contribute directly to new innovation and economic development. Limitations and exceptions are woven into the fabric of intellectual property law not only as specific exceptional doctrines (‘fair use’ or ‘fair dealing,’ ‘specific exemptions,’ etc.), but also as structural restrictions on the scope of rights, such as provisions for compulsory licensing of patents for needed medicines.”—Washington Declaration on Intellectual Property and the Public Interest (2011)

For some additional context on this issue, see also: "What does the secret TPPA text say about copyright exceptions?," and the Peter Jaszi, Michael Carroll and Sean Flynn statement.

This move proves that our July concerns, expressed in this joint civil society statement, were right and that it was too early to celebrate.

As commented by James Love:

“Among other things, this puts copyright exceptions for ‘criticism, comment, news reporting, teaching, scholarship and research’ under a restrictive three-step test, even in the areas where the Berne Convention and the TRIPS have different standards for exceptions, such as fair practice, or a total green light.”

It is critical to ensure that any language introducing the three-step test ensure that the test is not narrowly construed and also ensure that it is without prejudice to other existing limitations and exceptions that fall outside this test and 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.  

It is important to remember that the USTR does not represent a unified voice in the US, even though it is the executive office leading the TPP negotiations. However, the lack of transparency makes it difficult for others—including the US Congress—to participate in this debate. 

The next round of negotiations will take place in Leesburg, Virginia from September 6-15, 2012. During this round the public can participate through an accreditation process that allows Direct Stakeholder Engagement—an opportunity to speak directly and one-on-one with negotiators, raise questions, and share views and briefings. During the last round, in San Diego, EFF made a series of presentations and organized events with movements such as Occupy.

As reported by Inside US Trade, on July 6, the discussion in Virginia next month could focus on some copyright issues, as the US might seek initial reactions to its new proposal on copyright limitations and exceptions. This leaked text was actually formally presented to country delegates near the end of the last formal round in July, but TPP parties were unable to have a substantive discussion about it. Negotiators may now be prepared to discuss the proposal in depth after having taken it back to their capitals for review, sources said. TPP partners may also discuss other copyright issues, such as US-proposed provisions relating to IPR enforcement on the Internet, including new language on limitations and exceptions, sources said. Sources said it was unclear which specific issues US trade officials would discuss with their counterparts in Malaysia and Vietnam this week; however, it worries other organizations working in the access to medicines and development areas, such as Public Citizen and Third World Network.

Discussion of these issues during bilateral dealmaking is a move that completely closes the TPP text to discussion with outsiders, and unfairly exploits the market power of the US to bias the outcomes of the Virginia discussions. This process also puts fair use at risk, since trade agreement provisions are subsequently pushed through Congress based on a rhetoric of international obligation, creating domestic intellectual property law behind closed doors and bypassing the democratic law making process.

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