Transcript ppt - American Library Association

Trans-Pacific Partnership
Agreement (TPP)
Potential Impacts of
the TPP on Copyright
Krista L. Cox,
Director of Public Policy Initiatives, Association of
Research Libraries
What is the TPP?
• Trans-Pacific Partnership Agreement
• 12 negotiating parties: Australia,
Brunei, Canada, Chile, Japan, Malaysia,
Mexico, New Zealand, Peru, Singapore,
Vietnam and the United States
• Represents ~40% of world’s GDP
• Expected to eventually cover the entire
APEC region
• ~40% of world’s population; >50%
of world’s GDP
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History
• P4 (Brunei, Chile, New Zealand,
Singapore)
• Expanded to 9 countries (20082010)
• First round in March 2010
• Eventually added Canada and Mexico
(December 2012) and Japan (August
2013)
• Final full round August 2013
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Additional Background
• Negotiators and trade ministers are
currently meeting in Atlanta, GA
reportedly to finalize the agreement
• Final agreement will have 29 chapters
– Different priorities for each country
• Key chapters related to copyright,
libraries, access to information
– Intellectual property
– Investment
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Transparency
• No official release of the text
• Leaks of the Intellectual Property Chapter:
– March 2011 (US proposal)
– July 2012 (limitations and exceptions only),
– November 2013 (consolidated)
– October 2014 (consolidated)
– August 2015 (consolidated)
• Leaks of the Investment Chapter:
– July 2012
– March 2015
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Intellectual Property Chapter
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General Provisions
• Recognition of the public interest
• Recognition of the need to “promote
innovation and creativity” and “facilitate
the diffusion of information, knowledge,
technology, culture and the arts”
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Public Domain
• Chile and Canada proposal
“acknowledging the importance of
preserving the public domain”
– Opposed by the US and Japan
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Copyright Term
• Based on the life of the author
– US (+ US FTA countries): Life + 70 years
– Mexico: Life + 100 years
– Life + 50 years
– Domestic legislation
• Corporate works: 50, 70, 75 or 95 years
• Japan: Berne rule of shorter term
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Technological Protection
Measures (1/2)
• US 2011 proposal:
– Separate and independent cause of action
– Closed list of limitations and exceptions for
circumvention
– 3-year rulemaking for other limitations and
exceptions; substantial evidence burden
• Controversies
– No relationship to underlying infringement
– No permanent limitations and exceptions permitted
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TPMs (2/2)
• Current language:
– Violation of anti-circumvention: “independent
of any infringement that might occur under
the Party’s law on copyright . . .”
– Eliminates specific L&Es and three-year
rulemaking process.
– Allows L&Es through legislative, regulatory or
administrative process
– Removal of “substantial evidence” burden
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Limitations and Exceptions (1/2)
• US proposal in July 2012
– Shall confine L&Es to the “three-step test”
– Seek to achieve balance, giving due
consideration to criticism, comment, news
reporting, teaching, scholarship, and research
• Controversies:
– What is subject to the three-step test?
– Permissive, not mandatory
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Limitations and Exceptions (2/2)
• Language now acknowledges L&Es permitted
by TRIPS, Berne, WCT and WPPT
• Mandatory or permissive? “Shall endeavor to
achieve an appropriate balance . . .”
• Inclusion of facilitating access for the visually
impaired; Marrakesh Treaty reference
• Footnote confirming commercial aspects may
have legitimate purpose
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ISP liability (1/3)
• US 2011 proposal
– Highly prescriptive, notice-and-takedown
modeled off DMCA (but lacking some privacy
protections)
– Notice-and-takedown
– Termination of accounts of repeat infringers
• Not all countries have ISP liability regimes
(some countries not members to
WCT/WPPT)
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ISP liability (2/3)
• Canada (Bill C-11)
– Notice and notice system
– Formally implemented in 2015
• Japan and Mexico
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ISP liability (3/3)
• Flexibilities preserved for Canada’s
system, but requires system to exist on
date of entry into force
• Footnote allowing Japan to maintain its
system
• Proposed footnote acknowledging that
failure to qualify for safe harbor does not
itself result in liability; without prejudice
to L&Es and other defenses
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Other issues
• Parallel importation
– Removed at end of 2013
• Ban on formalities
– Appeared in October 2014 leak; removed in
August 2015 leak
• Temporary copies
– Removed in the October 2014 leak
• Remedies
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General Concerns
• Locking-in copyright provisions
• Openness to change/innovation?
• Creation of new global norms in a nontransparent forum, not all
countries/interests represented
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Investment Chapter
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Investor State Dispute
Settlement
• Intellectual property considered an
“investment”
• Allows for investor-state tribunals
– Corporations can sue a government directly
– Well-known conflicts of interest
– Non-transparent forum
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Questions?
• Any questions?
• Contact: [email protected]
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