from the oh-you-poor-babies dept
We’ve been discussing the concept of “fair use” and how ridiculous it is that the USTR seems to be ignoring it. Back in 2012 there was great fanfare out of the USTR, when they said, for the very first time, they’d be including “limitations and exceptions” in the TPP proposal. “Limitations and exceptions” being a misleading euphemism for fair use (and some other related concepts all focused on the public’s rights). However, as we noted soon after, the leaked text showed that while it was true that this would be the first such agreement that included such a concept, it only did so by limiting the ability of countries to implement a full fair use regime.
Then, with the latest leak of the negotiating text (from right before the most recent round of negotiations) we noticed how ridiculous it was that the fair use section was voluntary while all the sections on copyright enforcement were mandatory. Specifically all the enforcement sections said that countries “shall” implement this or that. But when it came to “limitations and exceptions” it just said that countries “shall endeavour to achieve appropriate balance.” In other words: you have to ratchet up copyright law, but with fair use, you know, maybe think about it and try your best.
With all this going on, apparently some tech/internet folks have been complaining to the USTR, and the USTR is actually considering reopening the negotiation on that point to improve the fair use bit. According to Maira Sutton at EFF:
As of last month, it seemed that all of the TPP countries had agreed to this language. In late July, however, tech companies’ renewed pressure seemed to have changed the game. The USTR offered to go back in and revise these provisions ahead of the last negotiation round. According to a spokesperson for the U.S. Chamber of Commerce, in exchange for support for the controversial Fast Track legislation, the USTR promised to make the TPP’s exceptions and limitations language more permissive and be a requirement, rather than being purely a suggestion, for all TPP countries.
And… guess who went ballistic? Yup. Hollywood.
According to Inside U.S. Trade, rightsholder groups like the Motion Picture Association of America (MPAA) are “livid” about the USTR’s move to revisit the language on exceptions and limitations. They’re pushing back hard, urging members of Congress?including every House member from California?to pressure the USTR not to touch these closed provisions. Why? Probably not because revisiting the language will actually cause any real harm to creators. The more likely explanation is that the copyright maximalists are worried that their tight grip over the USTR is slipping.
This isn’t all that surprising. Remember, as part of the Sony email leak, one of the emails showed MPAA boss Chris Dodd freaking out about the possibility that the TPP might include some sort of fair use. From the letter Dodd sent to USTR Michael Froman::
I am writing to you today regarding your Wednesday remarks at the Center for American Progress. I am concerned about your suggestion that previous free trade agreements? copyright provisions were unbalanced and that USTR has addressed this lack of balance by including ?fair use? in the TPP. Quite to the contrary, the recently ratified US-Korea FTA was supported by a broad cross-section of US industry, from tech and the internet community to the copyright community, and furthermore has been held up as a model agreement.
As I know you are aware, the inclusion of ?fair use? in free trade agreements is extremely controversial and divisive. The creative community has been, and remains, a strong and consistent supporter of free trade, but the potential export of fair use via these agreements raises serious concerns within the community I represent. Over the last 24 hours, I have received calls from my member companies questioning what they perceive as a significant shift in US trade policy and, as a consequence, the value of the TPP to their industry.
Amusingly, this is the same MPAA who ridiculously claims to love fair use. As Sutton notes, this reaction is almost certainly fear over losing lobbying control over the USTR — a main channel through which it has pushed its agenda for the past few decades.
But there is another important point in Sutton’s post: why should it require Google and other internet companies to step up before the USTR took this issue seriously? Plenty of us out here in the public have been arguing about this issue for years — including in letters sent directly to the USTR. But we’re totally ignored until “big industry” comes along and says the same thing. That’s really messed up.
The big media lobbyists’ theatrics over this minor amendment are embarrassing, but they do raise one important issue: our trade negotiators are a lot less interested in the needs of ordinary users and creators than the needs of powerful companies. Why else was a last-minute intervention by Google sufficient to bring the USTR back to the negotiating table on this topic, where the sustained interventions of EFF and 10 other major public interest groups from around the world were not?
These kinds of regulatory laundering efforts shouldn’t be at the whims of big companies, whether or not you agree with the policies being pushed. I’m just as uncomfortable with internet companies pushing the agenda as I am with Hollywood companies doing so. This entire process has been a ridiculous lesson in corporate give aways with little interest for the public. The only thing “transparent” here is how the USTR is focused solely on the desires of big companies, with absolutely no concern for the public interest. That seems like a fairly big problem, especially considering that Congress basically abdicated its (Constitutionally-guaranteed) role to step in and block bad provisions of these agreements.