The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Friday, 15 November 2013

TPP leak: what will the TPP do to trans-pacific copyright?

Yesterday this Kat was all in a tizzy over the sudden and unexpected appearance of the Trans-Pacific Partnership (TPP), which was wikileaking all over the place, including in his direction (see earlier Katpost here). Fortunately, some welcome help and assistance has come in the form of a guest post from Angela Daly (right), research fellow at the Swinburne Institute for Social Research and PhD candidate at the European University Institute. Here Angela, in her guise as Guest Kat for a Day, tells us what the TPP means for the world of copyright:
What will the TPP do to Copyright? 
This Guest Kat has been following the progress of the TPP since she moved to Australia earlier this year, particularly as regards the effect it will have on domestic copyright law, which itself is going through a process of reform to ensure it is appropriate for the digital economy. So she was very excited to get her paws on the leak of the TPP’s IP Chapter from August 2013 via WikiLeaks, the first time those outside the inner sanctum of negotiators (and seemingly also corporate lobbyists) have seen the text since the previous leak in 2011. In that time there have been various negotiating rounds, as well as plenty going on domestically in the countries at the negotiating table such as major copyright law reform in Canada last year. 
This Guest Kat will only focus on some of the main points coming out of the copyright provisions of the TPP here as she is not so much of an expert on other areas on intellectual property, although she did notice, on a cursory glance, some interesting points regarding patents, such as the fact there was a lot of disagreement among the parties regarding the relationship between patents and public healthcare measures as well as the scope of patentability especially regarding plant, animals and biological processes being hotly contested [Katnote: it's hoped to post a piece soon that looks specifically at patents]. 
So, turning to the copyright-related content of this new leak -- first, the term of copyright protection for natural persons has remained largely the same from the previous leak, i.e. life plus 70 years after the author’s death. For a basis other than that of a natural person, the US still proposes 95 years from the first authorised publication or performance and, failing such authorised publication within 25 years from creation, 120 years from when the work or performance was created, although these are contested by other parties in the negotiations (Article QQ.G.6). In  Australia the term of copyright protection has been life of the author plus 70 years since 2006, yet these provisions go beyond life plus 50 years of the Berne Convention and would bring all signatory countries in line with domestic American law. A proposal from some countries (Article QQ.G.7: {Term of Protection for Copyright and Related Rights}), opposed by inter alia the US and Australia, would determine copyright protection terms in accordance with domestic law and international treaties, such as the Berne Convention, to which a particular country is a party, which would presumably for most countries result in shorter terms than those stated above. 
This leak of the IP Chapter also suggests that copyright infringement can include temporary storage in electronic form of copyright material (Article QQ.G.1: {Copyright and Related Rights/Right of Reproduction}), although this is also highly contested by the parties. Indeed, there are attempts by some to propose limitations and exceptions, such as those that are ‘transient or incidental and an integral and essential part of a technological process’ (Article QQ.G.Z). Otherwise, such a provision would seem to interfere with the normal functioning of web browsers making temporary copies i.e. caches of web pages. Indeed, the UK Supreme Court recently decided that temporarily stored web pages which contained copyright material were not an infringement of these rights [on which see Eleonora's Katpost here]. Otherwise, millions of ordinary people would be infringing copyright every time they browsed the web, which would be an ‘unacceptable result’. 
The text on parallel importation of copyright material remains the same from the previous leak i.e. that rightsholders shall have the right to authorise or prohibit the importation of copies of the work made without authorisation (Article QQ.G.3: {Copyright and Related Rights}), but some parties, including Australia, contest rights-holders also being able to prohibit the importation of copies made outside their own territory with the authorisation of the rights-holder, which the US proposes yet would contradict the judgment of its own Supreme Court in Kirtsaeng. This is significant since the Australian House of Representative Standing Committee on Infrastructure recommended earlier this year in its inquiry into IT pricing in Australia (‘the IT Pricing Report’) that any restrictions on parallel importation in Australian copyright law be lifted. Australia also supports another proposal allowing parties to take appropriate measures to prevent the abuse of IP rights, practices that unreasonably restrain trade or adversely affect international transfer of technology, and anticompetitive practices, although this is not supported by the US (Article QQ.A.9: {Implementation of this Chapter}). Such a provision would be very important given that the IT Pricing Report has suggested that Australian consumers have been suffering the consequences of abusive assertions of IP rights to ensure they pay more for copyrighted products than their counterparts in places such as the US. 
Moving to exceptions to copyright, there is discussion of parties being able to enact copyright limitations and exceptions for criticism, comment, news reporting, teaching, scholarship, research in their domestic law (Article QQ.G.Y) – yet no mention of fair use, the prominent US exception to copyright infringement. This is striking given the heavy US copyright law bias of the text other areas yet not as regards consumer rights, as well as the fact that the Australian Law Reform Commission’s Copyright Inquiry has recommended that fair use be implemented in domestic law.

Regarding technical protection measures (TPMs) and their circumvention, the text of this version of the TPP would create a separate cause of action for breaking TPMs, and would be independent of whether an actual copyright infringement has occurred as well (Article QQ.G.10: {Copyright and Related Rights/Technological Protection Measures}). There would be very limited exceptions and limitations to the prohibition on breaking a TPM such as to achieve the interoperability of computer programs and for qualified researchers to investigate security flaws, as well as a procedure to enact more narrow exceptions at the domestic level. There is also a proposal from Singapore and Chile regarding TPM circumvention being permitted in order to get around attempted geographical market segmentation for film and IT products (Article QQ.G.11), presumably through region coding for example, which is supported in principle by countries including Australia. As detailed in the IT Pricing Report, Australian consumers have suffered due to such geographical market segmentation, however this provision currently does not have US support. Furthermore, the US also opposes a proposal to allow countries to ensure that the legal protections and remedies against TPM circumvention do not hinder or prevent permitted uses of copyrighted material or material in the public domain, with Australia controversially adding its opposition to this proposal as well. 
Finally, a controversial scheme for Internet Service Provider (ISP) cooperation with copyright holders to police infringement by their users persists in this draft of the TPP text (Article QQ.I.1: {Internet Service Provider Liability}). A proposal from various countries including the US and Australia would see parties providing legal incentives for service providers to cooperate with copyright holders to deter copyright infringement by their users over their networks, along with a ‘safe harbour’ for ISPs if they conform to various conditions, including the termination of the accounts of ‘repeat infringers’. While a ‘voluntary’scheme of cooperation between ISPs and rights-holders exists domestically in the US, this would signal a departure from current practice in Australia, especially in the aftermath of the iiNetcase in which it was found that the ISP was not liable for copyright infringements carried out by its users over its network.
It seems to this guest Kat that the controversial nature of many of these provisions has not escaped the parties, and indeed there is much disagreement and opposing proposals for the text from the countries. As a result, she will be very surprised if the parties reach an agreement by the end of the year, as was publicly announced earlier this year. 
From the Australian perspective, the positions of the Australian negotiators has been mixed – on some provisions they are acting in accordance with domestic happenings including the recommendations in the IT Pricing Report such as on parallel importation and the abusive assertion of IP rights, while on other provisions their position is not so forthright, such as standing by while ‘fair use’ is not explicitly mentioned in the text as a possible domestic exception. Furthermore, the Australian negotiators have taken a position on the cooperation between ISPs and copyright holders which is controversial domestically and something that ought to be open to public debate as it represents a significant change to current practice.
Thanks so much, Angela, this is really handy.  Adds the IPKat: watch this space, since notes on the TPP's General Provisions and Chapter on trade marks will be posted over the weekend.  

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