Knowledge Ecology International Leaks Provisions in TPP

Knowledge Ecology International Leaks Copyright Provisions in Trans-Pacific Partnership

Washington, DC — Knowledge Ecology International (KEI), a non-governmental organization that advocates for access to knowledge and access to affordable medicines through intellectual property reform, today, August 5, 2015, leaked the remaining sections of the May 11, 2015 version of the Intellectual Property Chapter for the Trans-Pacific Partnership (TPP) trade agreement. The negotiating text reflects the state of negotiations directly prior to the recent ministerial conference in Maui, Hawaii, which ended Friday, July 31, 2015.

Yesterday, KEI released sections of the text relating to pharmaceutical patents, enforcement of intellectual property rules, and cooperation. Today, KEI released the remaining provisions from the Intellectual Property Chapter, including the provisions on trademarks, copyright, geographical indications, and industrial designs. Collectively, they would create new copyright and trademark rules, and govern the granting of geographical indications rights. KEI also released Addendum XV, on Internet Service Providers, as well as section A of the Chapter, on “General Provisions.” The documents released on August 4 and 5 constitute the entire consolidated text of the intellectual property chapter for the TPP as of May 11, 2015, including all brackets, strikeouts, comments, and references to country positions.

These documents are on KEI’s website at: http://keionline.org/tpp/11may2015-ip-text. In the coming days, KEI will release additional commentary on the text of the agreement, which will be found here: http://keionline.org/tpp.

Below are comments on the leak from KEI, the Electronic Frontier Foundation (EFF), and Michael Geist, followed by a list of copyright experts who are following the negotiations.

James Love, KEI

The May 11, 2015 version of the TPP negotiating text illustrates the pitfalls of secrecy in trade negotiations when the subject involve topics as complex and socially sensitive as intellectual property rights. My comments today will focus on the provisions dealing with copyright. In many sections of the text, the TPP would change global norms, restrict access to knowledge, create significant financial risks for persons using and sharing information, and, in some cases, impose new costs on persons producing new knowledge goods. The remedies for infringement section of the agreement, found in Article QQ.H.4 on Civil Procedures and Remedies, is one example of overreaching. For damages, the TPP requires members to give judges the authority to consider “any legitimate measures of value the right holder submits,” and to be more clear, gives examples such as “the market price, or the suggested retail price.” For copyright, the TPP requires the possibility of additional damages, court costs and attorney fees, and the destruction of goods. These provisions are contrary to several U.S. statutes, including for example, 28 U.S.C. 1498(b), which limits remedies for copyright infringement when the use is by or for the government. They would also contradict the law in the United States following the two 1999 US Supreme Court Florida Prepaid decisions regarding state sovereign immunity (http://keionline.org/node/2293). The copyright remedies would prevent the Congress from acting on the June 2015 proposal by the US Register of Copyrights to limit remedies for copyright infringement in cases of Orphan Works (http://keionline.org/node/2240). In the section G on copyright, the TPP parties are considering a wide range of possible terms for copyrighted works, including, for corporate owned works for hire, a range of 50 to 95 years, and for published works, based upon the life of the author, anywhere from life plus 50 to life plus 100 years. The proposals for long terms exceed the requirements of all multilateral copyright treaties and trade agreements and are completely inappropriate for the TPP, particularly since the TPP negotiators rejected proposals to moderate the longer terms by specially allowing for registration in the TRIPS+ terms. The language on copyright limitations and exceptions is not as bad as some earlier drafts, and contain a welcome reference to the Marrakesh Treaty for the Blind, but legally the TPP provisions have the effect of restricting the flexibility for such exceptions found in the Berne Convention and TRIPS agreement, which have significantly more flexibility as regards exemptions for quotations, news of the data, public affairs, education, and other exceptions with different standards in the Berne Convention (see: http://keionline.org/BerneConventionExceptions). This is basically a question of when and if the three step test in Article QQ.G.16: {Limitations and Exceptions} should apply to an exception, when for that exception there is a separate standard for the exception in the Berne Convention. Unfortunately, particularly for the United States and Canada, the TPP provisions on remedies do not have much space for exceptions. Canada limits remedies for copyright infringement of architectural works after construction of a building is undertaken, and the U.S. limits remedies in the cases in described above, plus others selected cases, not only for copyrights, but for other types of intellectual property rights covered in the TPP enforcement articles. The section on the public domain in Article QQ.B.x: {Public Domain} is welcome, but not nearly as useful as it should be, given the awareness of copyright issues in 2015. At only 48 words, it is a lost opportunity to do something for the public in the TPP.

Jeremy Malcolm, EFF

A bad process results in a bad deal. Without users at the negotiating table, it's no wonder that the TPP is trampling on their rights. The latest leak text gives us no comfort that the final agreement will respect the concerns of ordinary citizens from around the Pacific rim. It's time for the negotiators to recognize a bad deal and walk away. If the cost of new market access is the loss of sovereignty over important areas of domestic policy such as intellectual property, that's too high a price to pay.

Michael Geist, University of Ottawa

From a Canadian perspective, the TPP would require a significant overhaul of current Canadian law. If Canada and many non-U.S. parties cave on key issues, this would include extending the term of copyright, implementing new criminal provisions, creating new restrictions on Internet retransmission, and adding the prospect of website blocking for Internet providers. Given the extensive debate on copyright during the 2012 reforms, the TPP upsets the balance the Canadian government struck, mandating reforms without public consultation or debate. The government has granted itself the power to continue to negotiate the TPP during the election period, but all the major parties should publicly declare where they stand on these issues.

The amount of disagreement within the chapter is striking. As of just a few months ago, there were still many critical unresolved issues with widespread opposition to (predominantly) U.S. proposals. Government ministers may continue to claim that the TPP is nearly done, but the parties still have not resolved longstanding copyright issues.

For more information and perspectives, KEI has compiled a list of experts, including NGOs and lawyers following copyright issues, and academics and experts from the United States, Canada, and Australia following the TPP copyright negotiations.

ENDS

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