A story today by Adam Behsudi in the trade publication, Inside U.S. Trade, quotes from ISP industry sources who basically defend the USTR position, which is the worst among the TPP negotiating countries. Taken as a whole, we read the ISP positions as both weak and incredibly damaging, as they are undercutting real opposition to the USTR proposal by non-US governments in the TPP negotiations. Basically, the ISPs are quoted as saying that since the US has signed an FTA with Korea and other countries with bad 3-step language, anything they get that liberalizes the notion of what passes the test is a win. This is a really weak and bad approach for the TPP negotiations. At this point, the US has NEVER had a statement in a multilateral treaty or trade agreement that establishes the 3-step test applies to the basic Berne exceptions, which are the bedrock of the US fair use law and which protect most of the US exceptions in the areas of teaching or news reporting or uses of extracts of works in blogs and other situations. The fact that this language exists in some bilateral agreements with smaller economies means next to nothing when compared to putting them into a huge norm setting agreement like the TPP where for the very first time they are likely to be used against the USA or against US fair use industries.
Below are some of the quotes from the Inside U.S. Trade Story
* the industry still acknowledged the text as a positive development even with a rigid three-step test requirement.
This is justified by the ISP source on the grounds that the USTR proposal: “allows for a favorable interpretation of what will be permitted to pass through the three-step test, the source said.”
* the U.S. proposal also differs from the Berne Convention in that it requires the application of the three-step test before deviating from copyright obligations. This could be interpreted as trumping the more flexible Berne Convention standard, which contains exceptions that are not required to first meet the three-step test.
* But one source pointed out that the U.S. proposal in TPP is similar to what it has negotiated in past trade deals, including the Korea-U.S. free trade agreement. There, the U.S. also limited the application of limitations and exceptions to those instances that conform with the requirements of the three-step test. For that reason, the only difference with the U.S. TPP proposal is that it lists specific areas in which TPP countries are allowed to deviate from copyright obligations, and also urges TPP partners to establish a “balance” between copyright obligations and deviations.
A copy of the story is available here.