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

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    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.