How the Trans-Pacific Partnership Jeopardizes Fair Use

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Earlier this week, Public Knowledge and 15 other global civil society groups sent a letter to the officials of the various governments that will meet and finalize the Trans-Pacific Partnership (TPP) provisions next week, urging them to rewrite parts of the trade agreement’s current intellectual property chapter. This is Public Knowledge’s latest effort to warn governments and the public of the harmful aspects of the TPP, which has been secretly negotiated among government officials behind closed doors. Recently, we sent letters to the United States Trade Representative and even alerted the White House to the TPP’s potential chilling effects on the right to knowledge and fair use as well as copyright reform efforts of Congress and the Copyright Office. 

We particularly urge the governments to adopt provisions in the TPP that encourage flexible exceptions and limitations (like fair use) to copyright. Only a flexible approach will give each country the opportunity to write domestic laws that best suit the needs of its citizens as consumers of intellectual property and as users of communication technologies.  

Exceptions and limitations are focal points to protect the everyday use of communications products. Although rapid technological developments may require updating intellectual property protections in the U.S. and abroad, such protective schemes should not disrupt the delicate balance between the rights of creators and the rights of average consumers. This balance has been maintained by exceptions and limitations to intellectual property protection. Within these boundaries, the public has enjoyed countless beneficial uses of intellectual property without having to worry about legal liability.

As we stated in our United States Trade Representative letter:

Limitations and exceptions to intellectual property rights are absolutely critical to a functioning marketplace. The digital revolution has ushered in an era of ubiquitous content. Even without actively seeking out knowledge properties, the average American is constantly being exposed to—and interacting with—copyrighted and patented goods. Overbroad intellectual property protections create a minefield of liability through which no consumer, no matter how savvy, can reasonably be expected to navigate.

The current intellectual property chapter of the TPP is the epitome of such overbroad protections, laying out restrictive provisions that weaken U.S. exceptions and limitations. We are chiefly concerned with the following provisions:

1) The retroactive extension of copyright terms that robs culture of 20 years of public domain works.

2) A ban on circumvention of technological protection measures, which threaten people's autonomy over legitimately purchased digital content and devices.

3) Heavy-handed criminal penalties and civil damages in cases where the parties were not involved in large-scale or financially motivated infringement.

4) Overbroad trade secret rules that could criminalize the work of journalists or whistleblowers who report on corporate wrongdoing.

Because next week’s TPP negotiations may be the last opportunity to revise the these provisions, Public Knowledge joins global civil society organizations in urging government officials to revisit the TPP intellectual property chapter and employ strong safeguards to fair use of copyrighted works. We specifically remind the USTR representatives directly involved in the negotiations that, “in order to be adequate, flexible exceptions and limitations language must be mandatory, not merely encouraged, to better enable each TPP country to achieve balance in its copyright rules.”

Our letter to TPP officials can be viewed here.

 

Image credit: Flickr user MusesTouch

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