About a month ago, we were slightly
encouraged by the public statement from the USTR that it was adding language
to the TPP agreement that embraced "limitations and exceptions" to copyright law -- even as we believe that it's wrong
to call fair use rights
"limitations and exceptions" when they're really just enforcing the public's own rights to information. We also found it bizarre and ridiculous that no text was being shared -- and noted that the USTR would garner a lot more trust if it was actually transparent and opened up the language in question for public discussion. Others expressed some specific worries about even the nature of the statement.
That said, it was
a big deal that the USTR would even acknowledge such things as fair use in a document like this, because historically it had never done so. It appeared to be a "step" in the right direction, but a relatively small one.
Late on Friday, however, the text of the current negotiations on that particular section leaked
to KEI who posted it to their site, and while (again) at least this is on the table for discussion, there are reasons to be greatly concerned. As many public interest groups had wondered, it appears that the text focuses on expanding the "three step" test for these expansions of user rights. The three step test
for user rights, as is written into the Berne Convention agreement is much more limited
than most of what we conceive of as fair use (it's also a relatively recent addition to the Berne agreement, being added in 1971). It's this:
Members shall confine limitations and exceptions to exclusive rights to (Step 1) certain special cases (Step 2) which do not conflict with a normal exploitation of the work and (Step 3) do not unreasonably prejudice the legitimate interests of the rights holder
In other words, it's written very much from the perspective of maximizing the rightsholders' ability to limit the public, rather than the public's best interest. In short, it's the exact wrong approach towards limiting the excesses of copyright. Nearly five years ago, Bill Patry warned that certain international organizations were using the "three steps" test, as a way to stop real fair use
from being implemented in various countries, and that appears to be the case with the leaked text. Here is the leaked text itself:
Article QQ.G.16: Limitations and Exceptions
1. [US/AU: With respect to this Article [(Article 4 on copyright) and Article 5 and 6 (which deal with copyright and related rights section and the related rights section)], each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]
2. Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]
[NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]
[US/AU propose: With respect to this Article and Articles 5 and 6, each party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]
2. [NZ/CL/MY/BN/VN propose; US/AU oppose: Paragraph 1 permits a party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws. Similarly, these provisions permit a Party to devise new] [US/AU propose; NZ/CL/MY/BN/VN oppose: its understood that each party may, consistent with the foregoing, adopt or maintain] exceptions and limitations for the digital environment.]
92 [US: For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under paragraph 2]
93 Negotiator’s Note: SG/PE: Can accept both versions of paragraph 1.
As you can see, item one, proposed by the US and Australia basically inserts in the exact three step test, which makes TPP more restrictive
than other international agreements like TRIPS, which give countries significant flexibility
in establishing fair use rights and other user rights.
It's also notable that, in that second section, many other countries have proposed allowing a form of user rights for breaking DRM and digital locks -- something that many of us think are important. But the US and Australia oppose
Either way, if you look just at the sections supported by the US, you quickly realize that what the USTR is proposing here is less about support for fair use and other user rights, and defining the constraints
on such things so that TPP member countries are not able
to implement more user rights.
Needless to say, this is unfortunate (though, perhaps, not a huge surprise).
No wonder the USTR refused to release this text. As per usual, it seems, the USTR was saying one thing while meaning another. Yes, it actually is recognizing the existence of user rights... but only for the purpose of limiting
how countries can implement them.
Finally, as Jamie Love at KEI notes:
Dear Congress: WHY IS THIS NEGOTIATING TEXT KEEP SECRET FROM THE PUBLIC?
Leaks are hard to come by, and do not invite as much scrutiny as official versions that are shared with the public.
And this particular text is a perfect example of why this text needs
to be public. The USTR made public claims suggesting a much wider embrace of user rights, but without sharing the specific text it was proposing. Now that we see what text is being proposed, it's clear why that was. The USTR isn't looking to expand or protect user rights. Instead, it appears to be merely acknowledging them for the sake of limiting
them as compared to existing agreements like TRIPS.