The U.S. is Proposing a Limitations and Exceptions Provision to the TPP

July 6, 2012

The Trans-Pacific Partnership (TPP) is currently in the 13th round of negotiations.  The text has yet to be released publicly, although there have been some leaks.  However, an important piece of news was made public by the United States Trade Representative (USTR) on Tuesday, July 3, 2012.  The USTR Press Office website announced:

“For the first time in any U.S. trade agreement, the United States is proposing a new provision, consistent with the internationally recognized ‘3-step test,’ that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.”

Like the text of the agreement itself, the text of the proposed limitations and exceptions provision has not yet been disclosed, but this news is still encouraging.  The key word is that this provision would obligate that nations legislate balanced copyright policy, by implementing policies like the U.S.’s fair use doctrine.  It is essential that countries create, maintain, or expand limitations and exceptions to copyright, because the TPP likely broadens the scope of rights and remedies available to copyright owners, in order to maintain the intended balance in copyright law.  It would have been noteworthy even if the announcement were to have been that brief, but the USTR post announcing this initiative elaborated on the importance of limitations and exceptions to consumers and businesses:

“An important part of the copyright ecosystem is the limitations or exceptions placed on the exercise of exclusive rights in certain circumstances. In the United States, for example, consumers and businesses rely on a range of exceptions and limitations, such as fair use, in their businesses and daily lives. Further, under the U.S. Digital Millennium Copyright Act (DMCA), the United States provides safe harbors limiting copyright liability, which help to ensure that legitimate providers of cloud computing, user-generated content sites, and a host of other Internet-related services who act responsibly can thrive online.”

This information is in line with principles that CCIA has advocated for years.  CCIA has released several editions of a study entitled “Fair Use in the U.S. Economy” that demonstrates the economic benefits of limitations and exceptions to copyright.  The 2011 study is available here, and more information is available here.  The USTR post also added:

“These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.”

While the text is not available yet, this seems to be an important acknowledgement by USTR of the many stakeholders’ interests and concerns.  Although many such stakeholders who rely on exceptions and limitations have not been involved in the negotiations, and continue to be excluded from the main discussions even in the current San Diego round, this recognition demonstrates progress, and is hopefully indicative of more participation going forward.

CCIA has put out a statement about this announcement in which it “welcomed the news of fair use-related language as a sign that negotiators aim to promote strong and balanced copyright provisions in the trade agreement.”  CCIA Vice President of Law & Policy Matthew Schruers commented to the Huffington Post that CCIA is “encouraged that the USTR has acknowledged that we can have strong and balanced copyright.  There is still much more to be done, on this issue, other IP issues, as well as issues outside of the IP space.

Nevertheless, this is an important first step toward modernizing the trade framework for the twenty-first century.”  Jonathan Band, a Washington, DC-based intellectual property attorney who has worked with CCIA on several amicus briefs, was quoted in Ars Technica:  “This is a very positive development.  This is the first time that the US has sought language of this sort in an international agreement. From the blog one can’t discern the precise language, which of course makes a big difference in how effective it will be on the ground. Nonetheless, this appears to be a big step in the right direction.” CCIA President & CEO Ed Black said, “This isn’t the end of a process; it is only the beginning.”  Black also added, “The U.S. Government still has considerable work to do to ensure that TPP fulfills its stated goal of being a 21st century trade agreement.”  As all of these quotes show, this is just the start of increased cooperation and participation.

Throughout TPP negotiations, numerous stakeholders have been denied access to negotiations and information, particularly organizations that represent important public interest concerns.  As a letter from thirty law professors to USTR put it in May 2012, “There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers.”

Additionally, U.S. government officials have not been included.  Senator Ron Wyden introduced S. 3225, a bill seeking to provide Congress with information and to permit Congress to be able to share their concerns.  As Sen. Wyden said, “More than two months after receiving the proper security credentials, my staff is still barred from viewing the details of the proposals that USTR is advancing.”  Additionally, Representative Darrell Issa expressed interest in joining the TPP talks, but his request was denied.  In his initiative to advocate transparency and participation, Rep. Issa has put up the February 2011 draft proposal of the TPP on for public comment.  This is an important tool for involving the public in intellectual property and trade policy that will affect them.

The commitment of average-citizens-turned-Internet-activists has also been effective in combating the Stop Online Piracy Act (SOPA) in the U.S., and the international Anti-Counterfeiting Trade Agreement (ACTA), which faced significant opposition abroad.  On Wednesday, July 4, 2012, largely in response to the public concerns, the European Parliament voted to reject ACTA.  ACTA still has the support of other nations, but this may have an impact on the progress of the agreement, and could have implications on the TPP.  Hopefully this week’s announcement that the U.S. is proposing a limitations and exceptions provision will be indicative of a more balanced and inclusive process going forward.  All in all, it has been a productive and encouraging week for underrepresented interests in intellectual property negotiations.

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