Trans-Pacific Partnership Agreement (TPP)

Potential Impacts of the TPP on Copyright

Krista L. Cox, Director of Public Policy Initiatives, Association of Research

Libraries

ARL

What is the TPP?

• Trans-Pacific Partnership Agreement• 12 negotiating parties: Australia,

Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States• Represents ~40% of world’s GDP

• Expected to eventually cover the entire APEC region• ~40% of world’s population; >50% of

world’s GDP

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History

• P4 (Brunei, Chile, New Zealand, Singapore)

• Expanded to 9 countries (2008-2010)• First round in March 2010• Eventually added Canada and Mexico

(December 2012) and Japan (August 2013)

• Final full round August 2013

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Additional Background

• Negotiators and trade ministers are currently meeting in Atlanta, GA reportedly to finalize the agreement

• Final agreement will have 29 chapters– Different priorities for each country

• Key chapters related to copyright, libraries, access to information– Intellectual property

– Investment

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Transparency

• No official release of the text

• Leaks of the Intellectual Property Chapter: – March 2011 (US proposal)

– July 2012 (limitations and exceptions only),

– November 2013 (consolidated)

– October 2014 (consolidated)

– August 2015 (consolidated)

• Leaks of the Investment Chapter: – July 2012

– March 2015

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Intellectual Property Chapter

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General Provisions

• Recognition of the public interest• Recognition of the need to “promote

innovation and creativity” and “facilitate the diffusion of information, knowledge, technology, culture and the arts”

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Public Domain

• Chile and Canada proposal “acknowledging the importance of preserving the public domain”– Opposed by the US and Japan

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Copyright Term

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Technological Protection Measures (1/2)• US 2011 proposal:

– Separate and independent cause of action

– Closed list of limitations and exceptions for circumvention

– 3-year rulemaking for other limitations and exceptions; substantial evidence burden

• Controversies– No relationship to underlying infringement

– No permanent limitations and exceptions permitted

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TPMs (2/2)

• Current language:– Violation of anti-circumvention: “independent

of any infringement that might occur under the Party’s law on copyright . . .”

– Eliminates specific L&Es and three-year rulemaking process.

– Allows L&Es through legislative, regulatory or administrative process

– Removal of “substantial evidence” burden

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Limitations and Exceptions (1/2)

• US proposal in July 2012– Shall confine L&Es to the “three-step test”

– Seek to achieve balance, giving due consideration to criticism, comment, news reporting, teaching, scholarship, and research

• Controversies:–What is subject to the three-step test?

– Permissive, not mandatory

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Limitations and Exceptions (2/2)

• Language now acknowledges L&Es permitted by TRIPS, Berne, WCT and WPPT

• Mandatory or permissive? “Shall endeavor to achieve an appropriate balance . . .”

• Inclusion of facilitating access for the visually impaired; Marrakesh Treaty reference

• Footnote confirming commercial aspects may have legitimate purpose

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ISP liability (1/3)

• US 2011 proposal–Highly prescriptive, notice-and-takedown

modeled off DMCA (but lacking some privacy protections)

–Notice-and-takedown

– Termination of accounts of repeat infringers

• Not all countries have ISP liability regimes (some countries not members to WCT/WPPT)

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ISP liability (2/3)

• Canada (Bill C-11)–Notice and notice system

– Formally implemented in 2015

• Japan and Mexico

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ISP liability (3/3)

• Flexibilities preserved for Canada’s system, but requires system to exist on date of entry into force

• Footnote allowing Japan to maintain its system

• Proposed footnote acknowledging that failure to qualify for safe harbor does not itself result in liability; without prejudice to L&Es and other defenses

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Other issues

• Parallel importation– Removed at end of 2013

• Ban on formalities– Appeared in October 2014 leak; removed

in August 2015 leak

• Temporary copies– Removed in the October 2014 leak

• Remedies

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General Concerns

• Locking-in copyright provisions• Openness to change/innovation?• Creation of new global norms in a

non-transparent forum, not all countries/interests represented

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Investment Chapter

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Investor State Dispute Settlement

• Intellectual property considered an “investment”

• Allows for investor-state tribunals– Corporations can sue a government

directly

–Well-known conflicts of interest

–Non-transparent forum

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Questions?

• Any questions?• Contact: krista@arl.org