Tag Archives: limitations and exceptions

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.

India First to Ratify the Marrakesh Treaty for the Blind; 79 Total Signatories to the Treaty

The World Intellectual Property Organization (WIPO) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled now has seventy-nine signatories. This treaty, also known as the “Marrakesh Treaty” or “Treaty for the Blind” was a significant achievement as the first WIPO treaty dedicated to limitations and exceptions, focusing on the rights of users rather than increasing the rights of rightholders. Significantly, India became the first country to ratify the treaty on June 24, 2014 (deposit with WIPO on June 30, 2014).

The treaty sets forth minimum standards for limitations and exceptions designed to facilitate access to accessible format works for persons who are blind, visually impaired or otherwise print disabled. It would also permit cross-border sharing of these accessible format works, allowing countries to avoid unnecessary duplication of efforts in the creation of accessible format works and also facilitate the importation of works in other languages. For example, a popular title would not have to be created in accessible format work in the United States, then again in Canada, then again in the United Kingdom, then again in Australia, and so forth. It could be created in one English speaking country then shared for the benefit of persons who are visually impaired in other English speaking countries. Persons in the United States could also benefit from this treaty through the importation of accessible format works in languages other than English, either to benefit those residing in the United States whose native language is not English, or to benefit those who are learning a foreign language. Tiflolibros in Argentina, for example, has a large library of Spanish language accessible format works that could be shared with beneficiaries in the United States if the treaty entered into force. More detailed information about the treaty is available in the “Users Guide to the Marrakesh Treaty.”

There was a recent flurry of signing activity due to Article 17 of the Marrakesh Treaty, which closed the treaty to signing one year after adoption of the treaty; June 27, 2014 was the last date for a country to sign. Signing the treaty signals that a country agrees with the treaty and essentially constitutes an endorsement of the instrument. While it does not create binding legal obligations to adhere to the requirements of the treaty, it does oblige the signatory from undermining the treaty’s objectives. Countries that have signed still need to ratify the treaty in order to be bound by it, and twenty ratifications are required before the Marrakesh Treaty will enter into force. Although the treaty is now closed to new signatures, other countries may join the treaty through a one-step process acceding to the treaty (rather than the two-step process of signing then ratifying).

A round of applause should be given to India for being the first (and currently only) country to ratify the Marrakesh Treaty, though it is expected that Kenya will soon follow. India’s swift ratification, within one year after the treaty’s adoption, is a record for any WIPO treaty and signals the importance of the objectives of the treaty.

In addition to the excellent news of the first ratification of the Marrakesh Treaty, there have also been nineteen new signatories over the last two months, twelve of which occurred over the last week. Notably, the EU signed the Marrakesh Treaty on April 30, 2014, and a number of EU member countries followed suit. The new signatories include: Argentina, Australia, Austria, Belgium, the Czech Republic, the European Union, Finland, France, Germany, Greece, Guatemala, India, Iran, Ireland, Mexico, Norway, Poland, South Korea and Slovenia. The United States signed last year on October 2, 2013.

The treaty initially opened for signature at the adoption and signing ceremony of the diplomatic conference on June 28, 2013. Fifty-one countries signed at the adoption and signing ceremony, a record number of signatories on opening day for any WIPO treaty. The full list of the seventy-nine signatories is available here. While this large number of signatories demonstrates the overwhelming support for the Marrakesh Treaty and is a reason for celebration, at least twenty of these signatories must take the next step and sign the treaty so that it may enter into force.

With India depositing its instrument of ratification, only nineteen more are needed. The United States, which already has robust limitations and exceptions to benefit persons who are visually impaired, should demonstrate leadership in this area and be one of the first twenty ratifications.

WIPO Standing Committee on Copyright Limitations and Exceptions Meeting This Week

This week, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will meet from June 30-July 4. The agenda for this session of SCCR includes discussion of broadcasting, limitations and exceptions for libraries, and limitations and exceptions for educational and research institutions and for persons with other disabilities.

At the last meeting of SCCR which took place from April 28-May 2, the EU blocked the conclusions of the meeting, refusing to agree to language referring to “text-based” work on limitations and exceptions for libraries. Ultimately, the Chair of SCCR released the conclusions as a Chair’s document, rather than as the agreement of the WIPO member states. Because WIPO operates on the basis of consensus, a single country or group can block action at WIPO, including for example, blocking adoption of conclusions or agreement to hold a diplomatic conference. By blocking the conclusions, the EU has potentially made it more difficult to move forward on work on limitations and exceptions at SCCR.

A live webcast of this week’s SCCR, as well as meeting documents, is available here.
Additional coverage of SCCR is available here.