Defining your rights to participate in culture: How the USTRs attempts on limitations and exceptions

August 14, 2012 ,

All over the world, blind people cannot get books and other
printed material as easily as those of us with sight can. Teachers face difficulties
in using movies and music, particularly those in digital format, in the course
of teaching. Librarians are constrained in their ability to lend and preserve
books, movies, and music. Copyright laws, with the restrictions and costs they
impose on these users, are a major contributor to these barriers. International
copyright agreements exacerbate these barriers by constantly ratcheting up
exclusive rights over knowledge and cultural products and diminishing user
rights. The TPP is the latest iteration of these agreements.

Copyright limitations and exceptions can correct some of
these imbalances between rights of owners and users of copyrighted works. That
is why it was so significant when the US Trade Representative (USTR) recently
that it would include provisions on limitations and exceptions within
the TPP. Some of these provisions leaked recently. However, if what was leaked
is the entirety of the US proposal, it does disappointingly little to protect
users’ rights.

Here’s why: The US proposal calls upon countries to seek
balance within their copyright laws through exceptions that promote criticism,
comment, news reporting, scholarship, and teaching. While that enumeration is
good, the US proposal subjects these limitations and exceptions to the so-called
“three-step test” – the test commonly used in international agreements to
measure whether limitations and exceptions within national laws comply with
these international agreements. The contours of the three-step test are subject
to great debate and have been subject to extremely narrow as well as broad
interpretations. Treating the test as the yardstick by which to measure
limitations and exceptions, and not spelling out with sufficient detail how
countries should provide for user rights does very little to protect and
promote these rights.

 How current agreements
deal with users’ rights: The three-step test

 In the current environment, countries, particularly the
poorer and smaller ones, are subjected to trade pressures for crafting
provisions in their laws that protect their users’ rights. To encourage these
countries to secure user rights effectively the TPP must spell out in more
detail what copyright limitations and exceptions should look like. 

The majority of international copyright agreements focus heavily
on providing copyright owners with strong exclusive rights. Yet these
agreements also have to acknowledge that there have to be limits to those
exclusive rights to protect and promote users’ rights to free speech, education,
communication, and so on.

The three-step test is supposed to measure limitations and
exceptions to copyrights and is common to most international copyright
agreements. Here is one of the standard iterations of the test:

 “[E]ach Party shall confine limitations or exceptions to
exclusive rights to [1]certain special cases that [2]do not conflict with a
normal exploitation of the work, performance, or phonogram
and [3]do not
unreasonably prejudice the legitimate interests of the right holder

(Source: Australia-US FTA).

As I’ve said, there’s a wide range of possible
interpretations of this sentence. Many would interpret the test very narrowly,
permitting only the most minor aberrations from the copyright owner’s exclusive
rights. A panel at the World Trade Organization (WTO) used such a narrow
approach when it considered one particular US copyright exception. Many
beneficial limitations and exceptions might not pass this narrow
interpretation. For example, an exception that would guarantee affordable
textbooks to students in developing countries might not survive a narrow
interpretation of the three-step test, even where the exception provided some
compensation to the copyright owner.

In contrast to this narrow interpretation, and perhaps in
response to it, many scholars have proffered an alternative, broader
interpretation that is more conducive to public interest concerns. The leading
example of this approach is this declaration by a group of scholars at
the Max Planck Institute, which says that the three-step test was never
intended to be a barrier to provisions that secure users’ rights or the public

But the controversy over how to interpret the three-step
test means that many countries may hesitate to protect users’ rights in their
copyright laws, out of a fear that the provisions they adopt will be assailed
as violating their international obligations. Given this environment,
provisions in international agreements like the TPP need to spell out in more
detail what copyright limitations and exceptions should look like.

Without this, new agreements can discourage countries from
adequately protecting users. This fear is not merely theoretical. Countries
that try to enact laws that benefit their teachers, librarians, and other users
of cultural products continue to be exposed to trade pressures and allegations
that they are not adequately protecting copyright or that they are not properly
complying with international agreements. For example, in 2010, Canada proposed changes
to its copyright law that would allow librarians to preserve copyrighted
materials by shifting them from obsolete storage formats to newer ones. One
industry association complained to the USTR that this provision was too broad. The
same association complained against other exceptions for libraries and educational
institutions that Canada proposed to institute.

That same year, the USTR signaled that diplomatic or trade
talks with Canada would intensify with a view to ensuring that Canada
appropriately reformed its copyright law. The USTR sent that signal by placing
Canada on its Priority Watch List in the 2010 Special 301 Report (page 25). The USTR
cited Canada’s failure to complete necessary legislative reform as one of the
reasons for this placement. While countries such as Canada may be able to
withstand US pressure, smaller, poorer countries might not. Some of these
smaller countries are participating in the TPP negotiations.

How the USTR’s
proposal falls short

The USTR’s proposed new provision simply restates the three-step
test, lists purposes for which limitations and exceptions can be devised, and subjects
all of them to the three-step test. This approach does nothing to solve some of
the confusion surrounding the three-step test. It does not provide sufficient
support for the argument that public interest concerns would justify certain
limitations and exceptions.

For instance, it does not clarify that conversion of a text
book into Braille for the blind justifies a sufficient limitation on the
exclusive right of reproduction. It does not clarify that library preservation
and lending, particularly digital lending, justifies an effective limitation to
the exclusive rights of reproduction and distribution. It does not clarify that
use of movies and music in classroom – both physical and virtual – justifies a
limitation on the exclusive rights of reproduction and public performance.

 A better approach

Agreements like the TPP therefore need to make sure that
they do not propagate unwarranted fears of limitations and exceptions.

As a first step, the TPP should spell out that the purpose
of provisions on copyright limitations and exceptions is to achieve a balance
between the rights of copyright owners and users. This would signal that user
rights are not mere aberrations from the copyright regime that can only be
legitimate if they are extremely narrow in scope.

Second, the TPP should define certain limitations and
exceptions with detail sufficient to provide guidance. Enumerating purposes
such as criticism, commentary, news reporting, research, and scholarship is
laudable and these are some of the illustrative fair uses in US law. Yet, just
mentioning these purposes, without more, is not sufficient to secure user
rights. Two examples of user rights that can be defined in more detail are
below. The TPP could provide that countries shall:

  • promote uses of works by people with
  • promote educational uses of works including by
    transmission over wired or wireless networks.

Third, the TPP should provide options to countries to craft
rules that would allow their citizens to benefit from copyright limitations and
exceptions despite contract rules and DRM that prevent them from doing so.  Often works come wrapped in DRM that prevent
users from making lawful uses. For example, the DRM on DVDs prevent students
from copying excerpts from different movies for a presentation in class.
Similarly, often users of digital products are forced to contract away their
rights to use material. For instance, many software programs come wrapped in
“license agreements” that tell you that you don’t really own that piece of
software when you pay for it. You merely license the right to use it. So, if
you try to sell the CD that the software came on, the license may prevent you
from doing that, even though copyright law may permit you to sell it. The
ability to prevent DRM and contract rules from defeating copyright limitations
and exceptions is important to preserve and promote user rights. And countries
must have the freedom to design such rules.

The approach I have outlined above is not unprecedented.
The Transpacific Strategic Economic Partnership
Agreement (P4)
, which is technically the predecessor to the TPP, contains
similarly beneficial provisions. However, it is unclear whether those
provisions will still be valid and applicable if the TPP comes to force. Given
this uncertainty, the TPP should ensure that it does not undermine the provisions
of the P4.