Note: The 3-step test issue in these negotiations can be confusing, and some of the technical details are both not obvious and a matter of some controversy among experts. The basic contours of the negotiation are that copyright owners want a restrictive test to be applied to limit the permitted exceptions in national copyright laws. The so called 3-step test is found with various wordings in parts of the Berne Convention, the WTO TRIPS Agreement, the 1996 WIPO Copyright treaties (WCT and WPPT), and the new Beijing treaty. One part of the controversy concerns how the 3-step test actually works (what is the test?). Another concerns the application of the test to certain parts of the Berne Convention that are not now subject to the 3-step test (Such as Berne Article 2bis, 10, 10bis, 11bis(2), 13(1) and the Berne Appendix, as well as flexibilities in related rights treaties, or in the TRIPS, including TRIPS limits on remedies for infringement. What you can see in the leaked text is that the USA takes the most right-holder friendly position, followed closely by Australia. It is not obvious the USTR position is in the Interest of the USA itself, which has a strong technology and fair use industry, but they do reflect the influence of special interest copyright lobbies with USTR.
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?” /node/1451,
“Berne Exceptions not subject to 3-step test” /node/1518, and the Peter Jaszi, Michael Carroll and Sean Flynn statemen: http://infojustice.org/archives/26799.
Note that the US and Australia are both presenting very restrictive text, and Peru and Singapore are both 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”
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
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 flexibilities for related rights, and making compulsory licenses or liability rules more difficult — something important for solutions to the orphan works problem.
What does this text tell us about country positions?
Comment on dealing with leaks
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.
Blogs and articles about this post
- August 3, 2012, Carolina Rossini, New leaked TPP text puts fair use at risk, EFF.
- August 5, 2012. Megan Geuss, Leaked: US proposal on copyright’s limits. A TPP draft looks more restrictive than some had hoped. Ars Technica
- August 6, 2012. Juha Saarien, Australia pushes for restrictive copyright in TPP. Sides with US in closed-door battle. ITnews for Australian Business
- August 6, 2012. DJ Pangburn. New copyright proposal threatens right to parody, commentary, even reporting. Death and Taxes.
- August 6, 2012. Mike Masnick. TPP Text On Fair Use Leaks; US Proposals Are Really About Limiting Fair Use, Not Expanding It. from the unfortunate dept. TechDirt.com
- August 6, 2012. Kimberlee Weatherall, copyright expert and associate professor in Sydney University’s Faculty of Law, Are we still America’s deputy IP sheriff in the Asia-Pacific? Crikey
- August 6, 2012. Zach Walton TPP Leak Shows That The U.S. Wants To Restrict Fair Use. Webpronews
- August 7, 2012, Peter Martin, Time to come clean on US bedfellow, minister, The Sydney Morning Herald
- August 7, 2012. Peter Martin, Emerson chasing deals that look like sellouts, Sydney Morning Herald.
- August 7, 2012. Suzanne Tindal. Australia jumping off a copyright cliff with TPP. Znet
- August 7, 2012. Michael Geist. TPP Fair Use Proposal Leaks Raising Concerns About New Restrictions.
- August 7, 2012. John Hilvert. Govt rejects copyright limit claims in TPP talks. ITnews
- August 7, Terry Hart. Three Step Turnaround. The Copyright Alliance. Terry Hart doesn’t know much about the topic (such as which exceptions are actually subject to the 3-step test in different agreements), but has strong opinions.