A Trade Agreement For The 21st Century

Today, Public Knowledge, the Special Libraries Association and Internet NZ told the Office of the United States Trade Representative (USTR) that an IP chapter in a truly “21st century trade agreement” should reflect the rights and interests of the wide variety of stakeholders affected by copyright. To demonstrate how this can be done, we submitted to the USTR our own discussion draft of a copyright chapter to be included in the proposed Transpacific Partnership Agreement (TPPA) and a letter explaining the draft. In contrast to the U.S. proposed draft, recently leaked on the Internet, we believe that this draft represents a middle-ground position that begins closer to a position that respects the interests of the many different stakeholders that will be affected.

This discussion draft calls for protection of copyright owners as well as preservation and promotion of copyright limitations and exceptions that allow companies to innovate and democratic discourse to thrive. In the 21st century copyright affects not only producers of content and its distributors but also technology companies that make products that can be used to copy, store, access, use, and repurpose copyrighted works. Excessive copyright protection would stifle the ability of these companies to trade in these products because they could be seen as encouraging or facilitating infringement. It also affects individual users, because digital technology enables them to use content in new ways and overly restrictive copyright protection and enforcement measures threaten to take that ability away.

To maintain a balance between the need to protect copyright on the one hand and promote innovation on the other, a 21st century agreement should break away from the trend in the recent past to only call for copyright protection while leaving it up to individual countries to craft limitations and exceptions to protect other stakeholders. It must actively protect these stakeholders. The USTR itself acknowledges the value of “encouraging new technologies and emerging economic sectors” in the TPP. The text we submitted to the USTR is an attempt to do just that.

Here is what we propose:

  1. Countries should provide for exclusive rights.

  2. Countries should enact limitations and exceptions to secure library preservation of works, educational uses, access to information by the disabled, and fair uses.

  3. Countries should ensure that DRM protections do not allow for end-runs around rights granted to innovators and users.

  4. Counties should ensure that enforcement of IP is proportionate to the wrong committed and employs fair processes.

We hope that our text will start a conversation around these issues. We hope the TPP negotiators will take note of this text and consider including some of its proposals within TPP’s IP chapter. Such a move would increase the credibility of claims that the TPP is a “21st century agreement.” It will also actually enhance trade by improving prospects for trade not only in IP products but also trade in consumer electronics products that rely on IP limitations and exceptions. What is more, it should protect the rights of consumers, users, and innovators while at the same time ensuring true protection for U.S. IP interests.

In the spirit of contributing to this conversation, please let us know what you think about this text.

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