KEI letter to Register of Copyrights, USPTO and OSTP on copyright issues in TPP

On the topic of the TPP and copyright, KEI has sent a letter to Maria Pallante, the Register of Copyrights, Shira Perlmutter, Chief Policy Officer and Director for International Affairs for USPTO, and Nancy Weiss, Senior Advisor to the Chief Technology Officer, Office of Science and Technology Policy (OSTP), Executive Office of the President.

KEI asked these agencies to address certain issues in the TPP intellectual property chapter that relate to access to copyright issues, with a focus on orphan works, and uses by governments.

Attached is a PDF version of the letter, which includes 3 attachments. (Copy here).

First, we discuss briefly the widely stated objections to the placement of long copyright terms in a trade agreement.

Next, the letter focuses on the provisions in the TPP on remedies including damages and costs, and show how these provisions are directly at odds with the recommendations of the copyright office for limitations on the damages and other remedies with regard to the infringement of orphan works.

Third, we discuss how the TPP provisions are contrary to U.S. law on access to works under 28 USC § 1498(b) and 28 USC § 1498(e), when the works are “infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government.”

Finally, we note that the TPP provisions expose the United States to costly right holder arbitration, when state governments, state universities and other state agencies infringe copyrights (or other intellectual property rights), contrary to US law after the 1999 Florida prepaid decisions by the US Supreme Court.