What Will Happen to the TPP Copyright Provisions?

Over the last several years, a group of countries, including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States negotiated a comprehensive regional trade agreement known as the Trans-Pacific Partnership Agreement (TPP).  This agreement was controversial for a number of reasons and, as a result of the recent elections in the United States, will almost certainly not come into force.

The TPP garnered heavy criticism, not only for the substantive provisions being negotiated, but also because of the lack of transparency in the negotiations; an official release of text occurred only after the agreement had been signed.  One of the chapters included in the TPP is one on intellectual property, with detailed provisions on copyright.  On October 5, 2015 the twelve ministers of the TPP countries announced that a deal had been reached and the final agreement on the copyright provisions had mixed results.

The final text showed several great improvements over earlier leaked versions of the United States’ proposal.  The text included flexibility in the language on technological protection measures and removed earlier proposals banning parallel importation or formalities, for example.  In many areas, including on technological protection measures, the text represented an improvement over prior, bilateral trade agreements between the United States and other countries.  Additionally, the TPP included a significant provision on limitations and exceptions, requiring parties to “endeavor to achieve an appropriate balance,” the first time such a provision has been included in a United States trade agreement.

While there were some improvements, there also remained areas of concern.  For example, the provisions on Internet service providers included a carve-out to allow Canada to maintain its notice-and-notice system, but did not extend this flexibility to any other country.  Additionally, the TPP included the lengthy copyright term of life plus seventy years, far exceeding the international minimum standard of life plus twenty.

Regardless of whether the TPP text was ultimately a positive or a negative, with Trump’s election and refusal by Congress to vote on the deal during lame duck, the agreement will not move forward in the United States and, likely, for the other eleven parties.  The TPP includes a provision stating that it will not go into force until after the ratification of the agreement by both the United States and Japan.  Although the remaining parties could renegotiate the agreement, they may not want to do so given that one of the major incentives was access to the United States market and that six of the eleven countries already had preexisting trade agreements with the United States.

What does this mean for the final copyright provisions, both the good and the bad, of the TPP?

First, with respect to the harmful provisions, countries should avoid adopting implementing legislation to comply with an agreement that will not come into force, such as restrictive provisions on technological protection measures or copyright term extension.  Curiously, some countries, most notably New Zealand, went forward with ratification and implementation anyway; New Zealand passed implementing legislation on November 15, including a provision to extend copyright term to the TPP-mandated term of life plus seventy years (though this legislation will only come into force if/when the TPP comes into force).  It would seem that in adopting such implementing legislation, if it does not go into force, New Zealand may lose some bargaining power in future negotiations, whether with the United States or not, with respect to copyright since it has already clearly indicated its willingness to adopt a term extension that has no real policy justification or evidence basis to support it.  In fact, New Zealand’s analysis found that copyright term extension would result in a “significant cost” to its economy. “This cost – in terms of foregone savings on books, films, music and other works – increases gradually over 20 years and averages around $55 million a year over the very long term.” Without the benefits of access to the United States’ (and other TPP parties’) markets, the real point of a trade agreement, why would countries move forward to implement provisions that do not benefit them?

There is always hope that should another large trade agreement be negotiated in the future, countries can find ways to oppose a copyright term that is highly controversial, even within the United States, which has been the demandeur of term extension.  One obvious positive of the TPP’s death is that these harmful provisions need not be enacted and, hopefully, will therefore be less likely to become a new global norm.

Of course, on the other side of the equation, what happens to the positive, or relatively positive, outcomes in the copyright section of the TPP?  For the first time in any United States trade agreement, text was introduced acknowledging the importance of a balanced copyright system and the role limitations and exceptions play in achieving this balance.  This text, a proposal by the United States, was substantially improved over the course of the negotiations, for example by clarifying that the language did not reduce the application of other limitations and exceptions permitted under international agreements, and also ultimately included a footnote referencing the Marrakesh Treaty for the Blind, Visually Impaired or Otherwise Print Disabled.  It would be a shame not to include this balancing provision in future trade agreements.  While the provision certainly could have been improved by requiring parties to achieve a balance, it still required parties to endeavor to achieve.  Hopefully, its inclusion in the final negotiated text, and the fact that it was a proposal by the United States, signals an intention to include balancing provisions in future trade agreements.

Furthermore, additional TPP provisions on technological protection measures, general provisions, and ones on enforcement allowed for greater flexibility than the provisions of many existing trade agreements.  Such flexibility may have resulted from the benefits of a larger group of negotiating countries which ultimately gave the United States less leverage in the negotiations.

President-elect Trump has indicated a desire to revisit the North American Free Trade Agreement (NAFTA), and in doing so, it is certainly concerning that the more harmful copyright provisions of the TPP may find their way into a renegotiation of NAFTA, without the benefits of the positive provisions.  Canada, in particular, because it has not yet implemented copyright term extension and has a robust fair dealing provision, should be wary of reopening copyright