[x-pubpol] Leak of TPP text on copyright Limitations and Exceptions

[Joly MacFie]

http://keionline.org/node/1516


Below is a leak of the negotiating text from the TPP trade agreement, on
copyright limitations and exceptions. For some additional context on this
issue, see: "What does the secret TPPA text say about copyright exceptions?"
http://keionline.org/node/1451, and the Peter Jaszi, Michael Carroll and
Sean Flynn statement here:http://infojustice.org/archives/26799.

Note that the US and Australia are both presenting very restrictive text,
and Peru is willing to accommodate the bad language. For example, see:

"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"

and

93 Negotiator’s Note: SG/PE: Can accept both versions of paragraph 1.

What was presented by USTR with great fanfare as language on "balance in
providing limitations and exceptions" is preceded with this language which
actually makes the TPPA more restrictive than the TRIPS or the WCT:
"Subject to and consistent with paragraph (1)."

Among other things, this puts copyright exceptions for "criticism, comment,
news reporting, teaching, scholarship and research" under a restrictive
3-step test, even in the areas where the Berne Convention and the TRIPS
have different standards for exceptions, such as fair practice, or a total
green light.

The leaked text follows:

*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.

Note that Australia is not shown asking for this provision that they have
in their current AU/US/FTA

(c) unless otherwise specifically provided in this Chapter, nothing in this
Article shall be construed as reducing or extending the scope of
applicability of the limitations and exceptions permitted under the
agreements referred to in Articles 17.1.2 and 17.1.4 and the TRIPS
Agreement.

USTR is putting US Fair use exceptions at risk, by creating a situation
where Berne Articles: 2(4,7), 2.bis, 10 and 10bis provide special
flexibility, but for which USTR proposes be put under the 3 step test in
the TPP. The US/AU proposal is also narrowing the flexabilities for related
rights, and making compulsory licenses or liability rules more difficult --
something important for solutions to the orphan works problem.
------------------------------
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.

-- 
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Joly MacFie  218 565 9365 Skype:punkcast
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