Tag Archives: 1201

New WikiLeaks of the Trans-Pacific Partnership Agreement Intellectual Property Chapter — Analysis of Copyright Provisions

The United States is currently negotiating a large, regional free trade agreement with eleven other countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. On October 16, 2014, WikiLeaks published a new leak of the Trans-Pacific Partnership Agreement’s (TPP) negotiating text for the intellectual property chapter. This text, dated May 16, 2014, contains some substantial changes from last year’s November leak of the text (which revealed the state of negotiations as of August 2013).

The chapter is now shorter and numerous brackets (brackets denote areas of the text which have not yet been agreed to) have been removed. The text also includes some new provisions. Some differences between the copyright provisions from last year’s leak to today’s leak are highlighted below. However, given that the leaked text is from May, further changes may have been made in the last five months and bracketed issues may have been resolved. TPP negotiations will continue in Australia next week where issues may reach further resolution.

Copyright Term

In the prior leak, New Zealand, Brunei, Malaysia, Vietnam, Canada and Japan supported a proposal allowing the copyright term of protection to be determined by “each Party’s domestic law and the international agreements to which each Party is a party.” The current leak reveals that this proposal has been eliminated.

The new text suggests that the copyright term will be specified in the TPP, though the exact number of years has not yet been agreed to. Bracketed language around the period of years reveals that the three options being discussed are life of the author plus fifty, seventy or one-hundred years. The United States, along with the countries with which the United States already has bilateral trade agreements with—Australia, Chile, Peru and Singapore—currently have a period of protection of life plus seventy years. Mexico is the only country that provides for life of the author plus one hundred years. The other countries in the agreement use the international standard of life plus fifty years.

For corporate works that have been published, the bracketed text includes periods of protection of fifty, seventy, seventy-five or ninety-five years.

In addition to these specified periods of years, a new proposal similar to the Berne rule of shorter term appears in the leaked text. This rule would essentially allow parties to limit the term of protection provided to authors of another party to the term provided under that party’s legislation. For example, if the final TPP text required a period of copyright protection of life plus fifty years, the United States would not be required to provide its period of life plus seventy years to authors in New Zealand if New Zealand continued to provide a term of life plus fifty years. The United States currently does not implement the Berne rule of shorter term.

Formalities

Another new provision in the text is a rule against formalities. Article QQ.G.X is unbracketed and therefore appears to be agreed to by the TPP negotiating parties. It reads, “No Party may subject the enjoyment and exercise of the rights of authors, performers and producers of phonograms provided for in this Chapter to any formality.”

This language could be problematic if the United States, or other TPP parties, wanted to re-introduce formalities for copyright protections granted that go beyond minimum international standards. Register of Copyrights Maria Pallante, for example, proposed the re-introduction of formalities for the last twenty years of copyright protection in the United States. If adopted, such a proposal would violate the TPP and subject the United States to investor-state dispute settlement, under which a corporation could sue the Unites States government for failure to comply with the TPP.

Limitations and Exceptions

Parties to the TPP have agreed to include language on limitations and exceptions, including a provision that has not been included in prior U.S. free trade agreements. This language reads:

Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16.1, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism, comment, news reporting, teaching, scholarship, research, and other similar purposes; and facilitating access to [AU oppose: published] works for persons who are blind, visually impaired, or otherwise print [AU propose: or perceptually] disabled.116 117

116 {In particular,} As recognized by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (June 27, 2013).
117 For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under Article QQ.G.16.3.

Most of this language had already been agreed to in the November 2013 leak. However, the new leak reveals that parties have now agreed to include facilitating access for persons who are blind, visually impaired or otherwise print disabled. Additionally, footnote 116 specifically referencing the Marrakesh Treaty is a new addition. While the Marrakesh Treaty has not yet been ratified by any of the TPP countries and has not yet entered into force (the treaty requires twenty ratifications; India and El Salvador are currently the two countries that have ratified it), several of the TPP negotiating parties have signed the treaty including the United States, Australia, Chile, Mexico, and Peru.

Technological Protection Measures

The language on technological protection measures (TPMs) in last year’s leak was heavily bracketed, highlighting the lack of agreement in this area. The United States initially proposed a closed set of limitations and exceptions to allow circumvention of TPMs, with additional limitations and exceptions possible through a three-year rulemaking process modeled off of Section 1201 of the United States Copyright Law.

The new TPP text eliminates the specific limitations and exceptions and three-year rulemaking process. It now allows limitations and exceptions through legislative, regulatory or administrative processes. Additionally, the United States’ proposed “substantial evidence” burden (proposed in conjunction with allowing new limitations and exceptions through the rulemaking process)—a standard not found in the United States Copyright Law—has been eliminated. This new text, with the exception of a few clauses, has been agreed to by the TPP parties.

The text now provides that:

Each Party may provide [MY/MX/PE oppose: certain] exceptions and limitations to the measures implementing subparagraphs (a)(i) and (ii) in order to enable non-infringing uses where there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party’s law, giving due consideration to evidence when presented in that process, including with respect to whether appropriate and effective measures have been taken by rights holders to enable the beneficiaries to enjoy the limitations and exceptions under that Party’s law [in accordance with Article QQ.G.16] [CL propose:, as well as the evidence presented by the beneficiaries with respect to the necessity of the creation of such exception and limitation]

This language is an improvement over the United States’ previous proposal because it would allow for new permanent limitations and exceptions that would allow for circumvention of TPMs—for example, for cell-phone unlocking. However, the language seems to assume that parties need to provide for limitations and exceptions even for non-infringing uses. As noted in a recent Library Copyright Alliance (LCA) statement, one of the flaws of Section 1201 in the United States Copyright Law is that this section could be interpreted to prohibit circumvention of a TPM even for the purpose of engaging in a lawful use of the work.

Additionally, it may be difficult to create a general permanent limitation and exception allowing for circumvention for any non-infringing use, such as was proposed in the Unlocking Technology Act due to the language requiring consideration of an “actual or likely adverse impact” of TPMs and evidence presented, including “whether … measures have been taken by rights holders to enable the beneficiaries to enjoy the limitations and exceptions under that Party’s law.” Requiring such considerations could be interpreted as allowing new permanent or temporary limitations and exceptions, but only on a case-by-case basis rather than by a general rule.

Internet Service Provider Liability

The latest leak of the TPP text also includes several new non-papers attached as addenda. The non-paper on Internet service provider liability is included as Addendum III and heavily bracketed.

LCA Submits Testimony to House Judiciary Subcommittee for Copyright Review Hearing on Technological Protection Measures

On September 17, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a hearing on Chapter 12 of the Copyright Act, which governs technological protection measures (TPM). The hearing included four witnesses: Mr. Mark Richert, Director of Public Policy, American Foundation for the Blind; Mr. Jonathan Zuck, President, ACT | The App Association; Mr. Christian Genetski, Senior Vice-President and General Counsel, Entertainment Software Association; and Ms. Corynne McSherry; Intellectual Property Director, Electronic Frontier Foundation.

The Library Copyright Alliance (LCA) submitted a statement to the Subcommittee in advance of the hearing.

The LCA testimony points out that overly-broad anti-circumvention language was initially proposed in 1994 and 1995 over objections that these prohibitions could prevent circumvention for lawful purposes. After the 1996 adoption of the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), PTO Commissioner Lehman proposed new anti-circumvention language to implement the treaties. Again, the proposals were overly broad, regulating both tools and conduct, regulating circumvention apart from underlying infringement and governing circumvention for both access-control technologies and copy-control technologies rather than only prohibiting copying. Significantly, the WIPO treaties did not require these overly-broad features, as Commissioner Lehman himself conceded when testifying before the House Judiciary Subcommittee.

Despite the fact that alternative proposals were made to address these overly-broad proposals, “Congress instead created a set of complex exceptions and limitations to the administration’s sweeping language, resulting in the convoluted, inconsistent section 1201 we have today. Some of these limitations are of limited effectiveness.” Additionally, Congress, in recognition that additional exceptions other than those explicitly included in Section 1201 may be desirable, directed the Librarian of Congress to conduct a rulemaking process every three years to determine additional classes of works that should be granted an exemption for the subsequent three-year period. However, as the LCA testimony points out, “A narrower section 1201 limited to circumvention that led to infringement would have obviated the need for the rulemaking procedure altogether.”

Over the years, there have been several efforts to amend section 1201 to address the potential problems resulting from an interpretation of this section as prohibiting circumvention of access controls or the manufacture and distribution of circumvention tools, even if they are for non-infringing purposes. These bills have varied from creating additional specific exceptions to requiring a nexus between circumvention and infringement. Most recently, controversy over the Librarian of Congress’ 2012 decision not to renew an exemption for cell phone unlocking that had been granted in previous rulemakings, resulted in renewed efforts to address flaws in Section 1201. Although Representatives Lofgren (D-CA), Massie (R-KY), Eshoo (D-CA) and Polis (D-CO) introduced a broad bill, the Unlocking Technology Act of 2013, that would have permitted circumvention for non-infringing uses, ultimately Congress took a narrower approach and adopted a temporary fix specific to the problem of cell phone unlocking.

The LCA testimony also includes a summary of litigation over Section 1201, explaining that currently a circuit split exists as to whether the language of 1201 requires a nexus between infringement and circumvention for liability to attach.

Additionally, the LCA testimony covers the three-year rulemaking process, which LCA members have participated in during each cycle. The testimony points out some of the absurdities of the process as well as the high costs and burdens of participating in the rulemaking cycle. The testimony points out that “From start to finish, the process can take more than a year” and that the inefficient system places burdens on not only the proponents of exemptions, but the Copyright Office, as well.

The testimony concludes with several proposed amendments to Section 1201 including:

  • Attaching liability to circumvention only if it enables infringement
  • Placing the burden of proof on those opposing renewal of exemptions to demonstrate why it should not be renewed or should be modified
  • Making exemptions permanent if a second renewal is granted
  • Shifting final rulemaking authority from the Librarian of Congress to the Assistant Secretary for Communication and Information of the Department of Commerce

Notes from Register Pallante’s “The Next Great Copyright Act”

By Greg Cram, Rights Clearance Analyst, The New York Public Library

On March 4, 2013, Maria Pallante, the 12th United States Register of Copyrights, delivered “The Next Great Copyright Act” at Columbia Law School. In the lecture, Register Pallante reflected on the history of other major comprehensive revisions to United States copyright law. She argued that the time has come for the next general revision to begin by noting the complexity of current copyright law and its failure, in some areas, to stay current. She highlighted the work the Copyright Office has already undertaken in preparation for the next act, including reports on Digital First Sale, Orphan Works, Pre-1972 Sound Recordings, Mass Digitization, and others. Finally, she laid out a number of issues that are on the table for consideration in the next round of comprehensive revision.

The content of the next comprehensive copyright act is important to libraries and library patrons. Copyright law impacts library services at all levels, from the basics of making unsupervised copiers available to patrons to the complicated digitization of works in library collections. In the lecture, Register Pallante highlighted a few issues important to libraries, including the first sale doctrine, the libraries and archives exception, the blind and print disabled exception, and the length of copyright protection. The next copyright act is certain to implicate many library services, not to mention the general flow of content in modern society.

Because of the importance of this lecture, I am sharing my notes below. The lecture was recorded, but is not yet available on the Kernochan Center’s website. I strongly recommend watching the recording when it is available. I labored to take accurate notes and do not intend to misrepresent the content of the lecture. Even with my diligence, these notes should not be understood to be an official record or transcript of the lecture.

My notes on “The Next Great Copyright Act”

The next comprehensive review should begin soon. A comprehensive review is needed for two main reasons. First, courts are asking Congress to fix copyright law (see, e.g., Golan, Google Books, Tenenbaum). Second, more people need help navigating a complex law and shouldn’t and army of lawyers to understand copyright law.

There should be two main themes for the next great copyright act. First, it should be forward thinking, but flexible. Second, authors’ rights to enjoy control and exploit works needs to be meaningful. Authors are not the counterweight to the public interest because protecting authors is in the public interest. A copyright act that did not protect authors would be illogical. But, the law needs to recognize that some authors are different by giving weight to Creative Commons licenses and public domain declarations.

The issues on the table for the next comprehensive review include:

  1. Incidental Copies

    —Not all copies are the same

    —Perhaps there could be discrete exceptions for certain incidental copies

    —For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act

  2. Public Performance Right for Sound Recordings

    —Copyright Office is a “strong supporter” of a public performance right for sound recordings

    —Disparities between terrestrial radio and internet radio royalty rates are hampering new business models

  3. Stronger Enforcement

    —The new law must respect the integrity of the internet, including free speech

    —There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online

    —On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads

  4. Small Claims

    —The Copyright Office is studying this issue

    —Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive

    —The Copyright Office could, potentially, take a lead role in administering small claims

  5. Statutory Damages

    —Review registration requirements

    —Look at statutory damages from all angles

    —Statutory damages are important part of copyright act and should be retained

    —Need to provide guidance to courts about how statutory damages should be applied

  6. The Digital Millennium Copyright Act

    —The Internet has evolved since DMCA passage in 1998

    —Congress should review the § 512 safe harbors

    —Congress also needs to review § 1201 rulemaking, especially in light of the White House response to a petition on unlocking mobile phones

  7. Registration and Deposit of Published Works

    —The deposit requirements for registration should remain in next copyright act

    —Congress should review the legal incentives for registration

    —How can the Library of Congress add born digital works to its collection through this process?

    —The policies surrounding mandatory deposit should not be driven by the collection building activities of the Library of Congress (see the ACCORD Report for more information)

  8. First Sale

    —Digital first sale will be an issue on the table

    —Physical first sale may also need to be reviewed, depending on the outcome of the Kirtsaeng v. John Wiley & Sons case currently before the Supreme Court

  9. Other Exceptions/Limitations

    —The libraries and archives exception in § 108 should be updated

    —Update exceptions for the blind and print disabled in § 121 for the digital world

    —Explore new exception for higher education institutions

    —Personal space-shifting

  10. Licensing

    —Need to review growth of licensing schemes

    —Review mechanical licenses

Now the “bold” issues:

  1. Term of 50 years, renewable for an additional 20

    —The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

    —However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

    —This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

    —Modeled after § 108(h), something the Copyright Office is very fond of

    —This proposal would be acceptable under various international treaties, including the Berne Convention

  2. Opt-Out v. Opt-In

    —Extended collective licensing could potentially solve many problems

Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.