Leaked Text from TPP Negotiations Indicate an Attempt to Limit Fair Use

On Friday a few short paragraphs of text were leaked from the Trans-Pacific Partnership treaty negotiations. The TPP is being negotiated by nine Pacific Rim countries (in secret) with the goal of producing a free-trade agreement that tackles issues related to intellectual property rights. The next round of negotiations is set to take place sometime in September in Leesburg, Virginia.

The negotiations for the U.S. government are being handled by the US Trade Representative (USTR), who was publicly criticized by 30 U.S. scholars earlier this year for the lack of transparency and the continued secrecy of ongoing negotiations. The agency shrugged off those criticisms and continued to negotiate the treaty anyway.

The USTR said that the trade agency would push for rules "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."

Here's where that leaked text comes in that we mentioned earlier. According to that text, U.S. negotiators have included language that could be viewed as leaving room to allow for a crack down on any anticipated broad terms of fair use.

According to the leaked text unearthed and posted online at keionline.org, the US and Australia have proposed a rightsholder-friendly three-step test to determine what exceptions to copyright are allowable. The leaked text says that the countries should confine these limitations "to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder."

Of course, this text is in draft form, which could mean that it might not end up in the final document or will be heavily modified to say something different at the end of the process.

The leaked text does seem to indicate that the US and Australia are seeking more restrictive language, while other countries such as New Zealand, Chile, Malaysia, Brunei, and Vietnam are looking for more open rules to allow "a party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws." The US and Australia sought to change the language to suggest “that each party may, consistent with the foregoing, adopt or maintain… exceptions and limitations for the digital environment."

It will be interesting to see how the language changes as it is further negotiated. Much of the worry about the TPP is that the public is being shut out of the process entirely while stakeholders are heavily influencing the process. ACTA was negotiated in much the same way, which led many in countries throughout the world to strongly protest it… That pressure from citizens ultimately killed the treaty when it came time for the Europe Parliament to vote on it.

We will continue to follow this story as it develops.

Source: Ars Technica

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