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This post is the first in a series of posts in which Public Knowledge will explain our concerns with the Trans-Pacific Partnership’s (TPP) copyright provisions. For the time being, this series will work off of the US’s copyright proposals [pdf] for the TPP that were leaked and made available February 2011. That leaked text from February 2011 is the most recent text that is publicly available.
One of the more troubling ways in which the US proposal for the TPP copyright provisions differs from current US copyright law is how it skews copyright cases in favor of the copyright owner.
US Law: The Plaintiff Must Prove Her Case
Under US copyright law, when a copyright owner sues a user she must prove that the work at issue has a valid copyright, that she owns that copyright, and that the user infringed the copyright in some way. In civil cases the copyright owner must prove all this “by a preponderance of the evidence”—basically, that each of her claims is more likely true than not.
If the copyright owner can’t meet that burden, let’s say, if she only proves that her allegations are 30% likely to be true, then she loses.
TPP: The Defendant Must Prove the Plaintiff Is Lying
The proposed TPP text would flip all of this on its head. Article 10.2 of the US proposal (linked above) requires TPP countries to presume that “the person whose name is indicated in the usual manner as the author, producer, performer, or publisher of the work” owns the copyright in that work. The same section also requires member countries to presume that the work in question is protected by copyright.
So, if a person claiming to be the copyright owner has simply slapped her name on a work where you would normally expect the author’s name to go, the court would be required to assume that the work is protected by copyright and that person is the rightful owner of that copyright.
Problems with the TPP Presumptions
Beyond simply being a bad idea, this system would be ripe for abuse. Plaintiffs could easily sue for infringement of works they don’t actually own, and it would be up to the defendant to track down how the work was created and subsequently licensed to prove that the plaintiff did not actually own the work.
This can be a tremendous burden on a user who may know little to nothing about the claimed copyright owner and her business relationships prior to the lawsuit. Often the rights in a work are transferred from the author, who is the initial copyright owner, to intermediaries who are supposed to help the author exploit the work. These transfers of ownership are not necessarily publicly available, and the TPP would put the burden of conquering the copyright licensing thicket on the defendant rather than the plaintiff, who is the most likely to have access to information showing she is or is not the copyright owner.
But wait, there’s more. The TPP also requires courts to assume that the work at issue in the case is even covered by copyright at all. This means assuming that the work is copyrightable (as opposed to facts or utilitarian functions) and that the work is still protected by copyright (as opposed to works in the public domain, whose copyright term has ended). Once again, the user, rather than the copyright owner, would have the burden of digging through history and establishing when the work was created or when it was first published in order to prove that she can’t be liable for using a public domain work.
This also allows copyright plaintiffs to claim copyright over elements of their works that are uncopyrightable. Facts, functions, general themes—all of these could be incorporated into a work that would be presumed copyrighted under the TPP. The burden would be on the user to show every part of the work that is not copyrightable, rather than the copyright owner showing which parts are copyrightable.
On a more fundamental level, these presumptions go against the basic process of US courts. Plaintiffs bear the burden of proof; you cannot simply drag someone into court and force them to spend the time and money to prove they are not liable. Defendants could still overcome presumptions and win the lawsuit by presenting enough evidence, but the whole point is that the person making the accusations should be the one responsible for showing they’re true.
How Could This Get Worse? Make It Criminal.
This post has been describing the impact of the TPP’s copyright presumptions in the context of a civil lawsuit between private parties, but the provision would also apply to criminal cases. This just makes the contrast between US law and the TPP even more worrisome.
In US criminal law, the government must prove its case against the defendant “beyond a reasonable doubt.” This is an incredibly high burden to meet—by its own terms, it means that if the prosecution in a criminal case leaves any reasonable doubt as to the defendant’s guilt, the defendant must be found not guilty.
The TPP wouldn’t just lower that standard, but would effectively alleviate the government’s burden of proving its case entirely for a very important element of the crime: that the works in questions (or the parts the defendant is accused of using) are copyrighted at all.
These presumptions may sound fairly abstract, even for copyright law, but they are extremely important to how copyright law actually functions and is enforced when someone is accused of infringement by another person or the government. The TPP’s copyright presumptions would not only conflict with current US copyright law, but with a fundamental element of the US court system: the accuser must be able to support her accusations.