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DEEPLINKS BLOG

Negotiators Burn Their Last Opportunity to Salvage the TPP by Caving on Copyright Term Extension

February 4, 2015

New reports indicate that Trans-Pacific Partnership (TPP) negotiators have agreed to language that would bind its 12 signatory nations to extend copyright terms to match the United States' already excessive length of copyright. This provision expands the reach of the controversial US Sonny Bono Copyright Term Extension Act (or the “Mickey Mouse Act” as it was called due to Disney’s heavy lobbying) to countries of the Pacific region. Nations including Japan, New Zealand, Malaysia, and Canada would all be required to extend their terms and grant Big Content companies lengthy exclusive rights to works for no empirical reason. This means that all of the TPP's extreme enforcement provisions would apply to creative works for upwards of 100 years.

Negotiators have been made well aware [PDF] that there is no economic rationale that can justify this extension. The fact that they have chosen to ignore what is a clear consensus among economists points to the fact that this agreement has not been driven by reason, but by the utter corruption of the process by lobbyists for multinational entertainment conglomerates, who have twisted what is notionally a trade negotiation into a special interest money-grab. After all of the trouble that public interest advocates have gone to educate negotiators about the folly of term extension, the fact that they have gone ahead anyway is the last straw for us. We'll now be pulling out all the stops to kill this agreement dead.

These are the terms of the proposal, revealed by several leaks of the TPP Intellectual Property chapter: If the copyright holder is an individual, the minimum copyright term would extend to the lifetime of the creator plus 70 years after her death. This means restrictions could easily be in place for a century after a work is created. In the case of works with corporate authors, the term extends to 95 years from the first publication, or if not published within 25 years of its creation, 120 years from then. These terms go far beyond what is required by international standards set out in the Berne Convention (WIPO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Copyright law gives rightsholders exclusive rights to use and profit from creative works, and, in theory, secure economic returns to the creator for their efforts. Hollywood and other copyright-industries therefore claim that longer terms of restriction are necessary to incentivize creativity and innovation. But long copyright terms are a defective means of compensating creators, who generally receive low royalties from their works. Meanwhile this right is abused in a way that deprives the public of valuable culture and knowledge. Lengthy copyright terms don't work to promote creativity—this is most obvious where terms extend past the life of an author. On the contrary, the public domain is a necessary source from which authors can learn and create. It is the fueling source of our shared culture, and it recognizes that we are always “building on the past”.

Even as excessive copyright fails to accomplish its aims, it creates a host of other problems. It would force everyone living in a TPP signatory country to pay a heavy price in continued royalties for content. For example, one scholar estimated that copyright extension has resulted in Australians sending an extra $88 million per year in royalties overseas. Such long copyright terms also lead to orphan works, where authors are long gone or no where to be found, leading to a massive amount of works whose copyright status is almost impossible to know. This can mean decades of knowledge and creativity stays locked up, and in too many cases, completely lost due to these restrictions that can impede the preservation of old works.

The White House justifies TPP by claiming it will promote economic growth and create jobs. But the continued enclosure of culture under exorbitant copyright terms would have the opposite effect. Creators who want to build new culture out of the shared building blocks of the public domain have to wait ever longer and use more and more distant and obscure materials. We squander the promise of the Internet and digital tools promise to make it more possible to make, sell, and distribute creative works if we cut out the common resources artists and authors would use to build them.

The copyright term extension provisions in TPP embody everything that is wrong with the TPP's digital policy rules, namely that the rules are put there for and by corporate interests that are privy to these secret negotiations, at the expense of users and the public interest. If TPP passes with these copyright terms, the agreement will be pointed to as a standard for "copyright protection", when in fact, they are just the result of lobbying from big corporate interests who got such laws passed in the US. TPP is just the latest vehicle for copyright policy laundering, and now more than ever, we need to stop it all costs.

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