Does the TPP (Still) Make Buffer Copies Illegal?

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One of the constant concerns we’ve had with the IP chapters of the Trans-Pacific Partnership Agreement is that it contains language suggesting that temporary electronic copies infringe copyrights. Considering that just opening a digital file necessarily makes temporary electronic copies of it, that’s a dangerous thing to leave lying about in a trade agreements that’s supposed to be setting standards for copyright laws. If every time you read your ebook, you’re making RAM copies of its contents, are you going to have to get a license for those fleeting copies? What about buffer copies of streaming media, or even the old-school anti-skip protection on your retro-cool Sport Discman?

Typically, we see this bad idea expressed in language like that found in this old leaked version of the TPP:

Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).

Luckily, that language appears to have disappeared from the more recent leaked version, which strips out the temporary language that I’ve italicized above.

But that doesn’t mean that the TPP allows temporary copies. In particular, take a look at its definition of “fixation”:

“fixation” means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device.

…and compare that with the definition in US law:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

In the U.S., for a “copy” of a copyrighted work to even exist, it has to be “fixed” in a tangible medium of expression—it can’t just be a spontaneous, unrecorded speech or song. And for it to be “fixed,” the fixation has to be stable enough and last for more than a “transitory duration.” In other words, transitory, temporary copies, like buffer copies or fleeting RAM copies, aren’t “copies” at all under the law—they shouldn’t get you in trouble.

This was actually a key part of the Cablevision decision: TV studios and broadcasters suing over a new type of DVR argued that making even fleeting copies—lasting mere seconds—was a copyright infringement. This argument would have made countless devices illegal, or would mean that electronic devices everywhere in the country would only operate under the guide of fair use. And as much as I like fair use, it seems ridiculous to have to rely upon it every time I play music on my phone or stream Netflix to my laptop.

So if US law relies heavily upon this “transitory period” limitation in the definition of “fixation” to keep computers legal, why would the TPP include a definition that excludes that limitation? Would the US definition of “fixed” come into question? And what happens for countries that lack fair use or other clear limitations and exceptions?

The fact that, several years into this discussion, such basic questions can still be asked is a function of the fact that debates about the text of the agreement are all based upon leaks and rumors, since the actual live proposals made by the countries’ representatives aren’t visible to the people who will have to live under the laws they propose. That’s just one reason why the TPP remains problematic, even as we’re hearing that one of the agenda items for the new Congress is to push for fast-track authority to get trade deals like the TPP through.

 

Photo credit: Wikimedia Commons User Tomf688

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