TPP Text On Fair Use Leaks; US Proposals Are Really About Limiting Fair Use, Not Expanding It

from the unfortunate dept

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 [US:
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 that section.

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:


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.

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Comments on “TPP Text On Fair Use Leaks; US Proposals Are Really About Limiting Fair Use, Not Expanding It”

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Mason Wheeler (profile) says:

Re: Re: Re:

Nothing. I think you have the Constitution confused with the Declaration of Independence.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Zakida Paul says:

What amazes me is that the public turn out to vote time and again for representatives from the big 2 parties and then moan when those same politicians act in the interests of big business rather than what is best for the public.

It is time to stop feeding a broken system, people. It is time to stop voting for ‘less bad’. There are always decent, hard working independent candidates who would love your votes and would represent your interests in the way you want them represented.

Dreddsnik says:

Re: Re: Re:

I’d love to. Unfortunately. the 3rd party alternatives are much worse, even more crazy ( if possible ), and less trustworthy ( very hard to do ). It’s not the lesser of two evils, it’s the lesser of ALL evils. It would be nice to go back to the days when you didn’t have to be a millionaire to run for president.

Rikuo (profile) says:

Judge: You are found guilty of violating TPP.

Accused: How and why, Your Honour? I, a member of the public, was never invited to discuss my views on TPP. My representatives that I had elected to government office were not allowed to discuss their views, or the views of their constituents. In short, Your Honour, you are charging me with violating a law the people had no input on, that was entirely written, proposed and ratified by self-interested parties. Are you now going to find me guilty of not bending over and taking a good shafting, as it says in this obviously paid for law?

Ophelia Millais says:

Re: Re:

Since when has there been any requirement that any international treaty or trade agreement, or any proposed legislation to implement such an agreement, be subject to public input before it is introduced in Congress?

Like most other laws, the legislation to implement the TPP will become public only once it’s drafted and submitted to Congress. Under Fast Track, which the TPP is expected to be concluded and implemented under, Congress can’t change the text, but is as free as always to at least vote it up or down, and to take the public’s concerns into account at that time. As long as the Fast Track procedure is followed, no court is going to second-guess Congress’s intent in passing that law.

If Congress wants the public interest to be taken into account during negotiations, it will make that a requirement in its delegation of negotiating authority to the executive. But trade agreements generally aren’t written with the public’s direct interest in mind; the goal is to increase trade to boost the economies of all the parties to the agreement, not to protect your ability to make use of copyrighted works without license. So if the executive, acting as an agent of Congress, deems that the public’s fair use claims are interfering with commerce, then it’s reasonable to expect the trade agreement and its implementing legislation will reduce the ability of the public to make such claims.

As it may well result in unfair judgments against individuals, the courts can urge Congress to withdraw from the TPP and reinstate the original four prongs of fair use, but cannot in the meantime find the accused anything but guilty of copyright infringement if the fair use tests, as currently written, aren’t met.

I’m not saying I like it, just that it’s not realistic to expect “the public didn’t have a say in the authorship of the treaty and its implementing law” to be persuasive in a courtroom. The public normally doesn’t have a say in such matters.

James Love (profile) says:

Re: Re: Transparency

The negotiating text for the Beijing treaty, which was just signed by the US, was public. The negotiating text of ACTA itself was published by USTR and other parties in April 2010, before it was finished. All of the current negotiations at WIPO on a treaty the blind, broadcasting, education, etc, are public. The WHO negotiations on IPR and health featured once or twice daily public drafts of negotiating text. The negotiating texts of the Hague Convention on choice of court were public. The 1996 WCT and WPPP negotiating texts were public, and USPTO asked for comments via a Federal Register notice, on the texts.

Ophelia Millais says:

Re: Re: Re: Transparency

Thanks for pointing out those examples of transparency, but they do seem to be exceptions. I don’t see any constitutional or legal basis for mandatory public disclosure of the negotiating text for the TPP, let alone public input into the process. Trade agreements are notorious for irritating whichever segments of industry, labor, and the public benefit from the status quo. If the negotiators have something to gain by making it public, they’ll make it public. If they consider public awareness a risk, they’ll keep it private.

Tim Griffiths (profile) says:

Re: Re:

Copyright ended up, for a while, being designed for the public good, the short term benefits to individuals was a means not the ends. That way of thinking has been turned around and there is no reason for the public to support state granted monopolies that do nothing to benefit the state. Yet they just keep on pushing… telling us taking our rights away is good for us… it’s just not going to last.

ECA (profile) says:

ALL these bills.

Im tired, but have to mention this..

That Strange document made up each year that declares ALL the countries that have problems with copyrights..
For some reason, I think, the USA is on the bottom of the list.
All the numbers show that the USA is the LEAST of all the problems…
SO, WHY are we trying to regulate the USA?
ANY trade bill, generally becomes, law..and the USA should NOT be trying to CREATE laws in other countries…ITS AGAINST THE LAW..

Every ramification IN these bills, TENDS to come back to regulations IN the USA.
YES we can block sites from other countries. BUT DO WE WANT TO??
As one person pointed out about a site that posted connections to prostitutes.. WHY BAN IT, it makes it easier for the COPS to find them.
IF this is to protect the COMPANIES that worry about taking down the ELECTRIC company/the Dams/and 1/2 the infrastructure in the USA…THATS STUPID..can you see someone in their underwear typing away on a computer to CONTROL your power?? AND ITS NOT SAFE in any way shape or form.
If its to BAN porn? it wont happen.

Long ago a person mentioned something remarkable about TECH.
As you look at a farmer, and WHAT WAS needed to FARM, the men needed to set out crops, and bring in crops USEd to be a small business. NOW they spend just as much for the EXTRA 100 people, while using TECH..
HOW many companies, have CUT personnel? and started using TECH.
I KNOW ONE…the phone company. they keep raising RATES, except they make MORE money on Cellphones. look up your Franchise laws in each town/city/county/state.. THATS what they have to pay JUST to be allowed to give yo a phone line. Its about $10 per house TAXES. Cellphones dont pay that.
HOW many power companies have CUT persons enough to allow 1 person to control the WHOLE THING.(there are some)

James Love (profile) says:

What does the 3-step test apply to in Berne, TRIPS or WCT?

For most people, the “3-step test” is not something that is well known, since it often comes from treaties and trade agreements, rather than national law. To make things more complicated, it can be presented as something that expands or restricts flexability, depending upon the way things are worded. I encourage people to read the Berne Convention Articles 2bis, 10 and 10bis, for starters, to look at some cases where the Berne DOES NOT apply the 3-step test, to appreciate why this is so important. In general, if an agreement for either copyright or related rights has a different standard for exceptions, and that standard is more liberal than the 3-step test, you DON’T want the 3-step test expanded to cover those exceptions. Right now the WTO does not apply the 3-step test in areas where the Berne or the Rome Convention has a different standard, and the WCT is not subject to the WTO dispute resolution mechanism at all.

Anonymous Coward says:

anything that can be done to stick it to joe public will be done just as anything that can ramp up copyright protections and old business models for even older morons in the entertainment industries will also be done. the day will come when these folks truly get what they deserve. i am waiting to hear the excuses they can dream up ready for that day!

hmm (profile) says:

easy way to win the election

Simply run with a primary aim that ANY law or treaty that ISN’T made public before its signed/ratified isn’t legally binding on the population.(a new constitutional amendment)

This would obliterate pretty much all ACTA/TPP/SOPA type backroom deals, as it doesn’t matter at all what happens, because the process isn’t publicly available (including unredacted text) it wouldn’t be constitutional.

Michael says:

I wouldn’t be surprised if this tidbit was leaked intentionally to gauge public reaction. This is probably one of the tamest of the TPP proposals.

As someone else brought up, as this *agreement* is being crafted outside of public scrutiny, nobody should feel obligated to follow crony corporate rules and regulations. These corporations do not have authority over you, they do not own the internet and they do not own the technology you use to access it. This is an affront to our nation and a blatant mockery of the democratic processes.

Big Copyright's Puppeteer says:


What! You mean to say that Ron Kirk was full of shit when he sent that note out and then the press was all like “Niiiice Bro, we can relax! The world is a fair place, after all!” and then you did and actually believed he wasn’t just playing you for fools. Except that he was and, still is.


Ophelia Millais says:

Re: Re:

The TPP is a trade agreement between nations; it is a type of international treaty. The executive powers of most nations are generally permitted by their constitutions to negotiate treaties and then submit them to the legislature for ratification and implementation. Ostensibly, the public interest can be taken into consideration at that time.

Since trade agreements are intended to boost trade, pumping money into each other’s economies, the “stakeholders” involved in the negotiations are mainly corporations, along with government (executive branch) reps. Corporations are beholden to their shareholders, not the public.

Ideally, treaties require policy changes that the executive can undertake, and require few or no changes to domestic law, thus ensuring they get passed. However, in recent years, especially with some agreements stalling, negotiators have become ballsier, stepping far beyond tariff reductions and trade policy changes, and committing their nations to treaties that require substantial legislative changes in order to implement. In dire economic times, legislatures are quite receptive to anything designed to boost trade, so it’s likely that they’ll do whatever is demanded of them…

Rekrul says:

Re: Re:

I’m a little confused about something here: since when do private business desires trump public interests?

Since the big businesses started buying the loyalty of politicians with huge campaign contributions and promises of high-paying, cushy jobs once they leave office.

How is it even possible for private trade agreements between private companies to change public laws?

Easy, they have the majority of the politicians on their payroll, so the government douchebags do whatever the corporations want.

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