TPP’s Copyright Limitations And Exceptions Leaked

August 6, 2012 by
Filed under: Announcements & Events, Entertainment Industry, Legal P2P News & Issues 

It is said that when a door closes (in this case, the defeat of ACTA in the European Parliament), a window opens. Such a window is represented by the Trans-Pacific Partnership (TPP). A segment of the agreement explaining copyright terms and exceptions leaked, revealing disturbing news.

Rights holders alongside with multinational corporations were hoping for a major change in the copyright arena with the help of ACTA. To their disappointment, the act was utterly rejected by the EU Parliament after months of protests and campaigns as provisions within ACTA were threatening everyone’s online and offline rights.

A similar agreement between Canada and Europe is the Comprehensive Economic Trade Agreement (CETA). Just like ACTA, CETA also raised concerns about its restrictive copyright provisions after a copy was leaked. In its defense, John Clancy claimed that the leaked document was merely a duplicate of the already rejected ACTA, and does not reflect the actual version of CETA.

While the Trans-Pacific Partnership promises to approach consumer protection in its provisions, among other issues, concerns about the agreement are still present.

The leaked information was brought by KEI Online:

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.]

So, what we understand is that the TPP is quite similar with the new copyright laws in Canada, while also approaching a bit of the anti-circumvention laws in the US (like the DMCA). In a nutshell, you can apply the limitations as long as you don’t circumvent a copy protection measure such as DRM (Digital Rights Management) or TPM (Technological Protection Measure).

While there were some efforts in the US to balance DRM’s key features, such as allowing teachers to use bits of movies in their classes without breaking the law, Canada is now in the position to start over in order to avoid further damage brought by their anti-circumvention laws.

As for the TPP, here’s what the first paragraph reads:

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.]

On this matter, KEI Online stated:

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 used language is just as confusing as in the other agreements. While the US negotiators promise consumer protection, these protections are basically even more restrictive. Furthermore, the exceptions seem to be useless when compared to the other restrictive provisions within the TPP.

“I would argue that even if the exceptions were beefed up to the point of being able to circumvent a DRM for fair use purposes, the exceptions are pretty much meaningless in the face of a three strikes law and site blocking,” Drew Wilson of the ZeroPaid commented.

To conclude, both the United States and Australia do not allow other countries to decide what is “fair use” and “limitations”, but instead they must abide to the international agreements, including the TPP.

via ZeroPaid

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