Groups urge balance in TPP IP provisions

Language allowing for copyright exceptions should be mandatory for signatories, open letter says

A coalition of 15 groups, including the Australian Digital Alliance and Electronic Frontiers Australia, has called on participants in Trans-Pacific Partnership (TPP) negotiations to ensure that support for fair use-style exceptions to copyright is included in the agreement.

Australia is part of the negotiations for the international trade agreement.

"There have been reports recently that the exceptions and limitations provision in the TPP’s Intellectual Property chapter is being revisited in negotiations," the letter states.

"We write to emphasize how critical it is that this language unequivocally protects and promotes exceptions and limitations to copyright in ways that are fit for the 21st century."

"Fair uses of content must be protected with strong safeguards, especially in the context of an agreement that emphasizes increased protections and enforcement of copyrights," the letter adds.

"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. A flexible exceptions and limitations framework in this agreement is necessary for each party to craft rules that best suit the needs of its people for new or previously unaddressed public-interest uses of copyrighted content."

The US Trade Representative in 2012 announced it had proposed a new provision for the TPP's intellectual property chapter "that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research".

The open letter was issued ahead of a new round of TPP negotiations.

The letter said that even with the possibility of fair use-style exceptions being included in the TPP, the groups remain concerned about potential IP provisions that could retroactively extend copyright terms, ban the circumvention of DRM-style technological protection measures, and impose serious criminal and civil penalties for copyright infringement that is not carried out on a large scale or financially motivated.

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Provisions in the TPP could also potentially criminalise whistleblowers and journalists.

"Taken together, these and other restrictive provisions in the Intellectual Property Chapter threaten the rights and interests of users and individuals in many dangerous, ways, such as undermining the public's right to free expression, and their ability to access knowledge, participate in culture, and innovate online," the letter states.

"We continue to hold strong reservations about the effects of the Intellectual Property Chapter, and the opaque negotiating process by which these provisions have been decided... We urge trade negotiators to be receptive to this critical change in the exceptions and limitations provisions in the TPP Intellectual Property chapter."

Previous leaks of the TPP IP chapter revealed that Australia was pushing an approach to copyright enforcement that appeared to ignore broader public interest concerns in favour of supporting copyright owners.

The Harper Competition Policy Review, released earlier this year, argued that Australia should conduct an analysis of the costs and benefits before signing international agreements with IP-related provisions.

Australia's IP arrangements are currently the subject of a review by the Productivity Commission.

The PC is examining the impact of the IP regime on research and innovation, access to and cost of goods and services, and competition, trade and investment.

The terms of reference for the new Productivity Commission inquiry state that in its work the body should have regard to "Australia’s international arrangements, including obligations accepted under bilateral, multilateral and regional trade agreements to which Australia is a party".

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Tags copyrightintellectual propertyTrans-Pacific Partnership (TPP)

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