Failing to understand the needs of the 21st century: The TPP’s flawed digital locks scheme
Failing to understand the needs of the 21st century: The TPP’s flawed digital locks scheme
Failing to understand the needs of the 21st century: The TPP’s flawed digital locks scheme

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    The 14th round of negotiations for the Transpacific Partnership Agreement (TPP) started today. The TPP is being touted as a “21st century” trade agreement, implying that the TPP’s provisions would reflect an understanding of the needs of 21st century citizens. With respect to copyright, this should mean that the agreement would reflect an understanding not only of the tools copyright owners need to protect their rights but also an understanding of the flexibilities that various users (like hobbyists, cultural institutions like libraries, archives and museums, and information and communication technology companies) would need to use digital material. Yet what we know of the TPP, at best, reflects little understanding of the needs of these communities.

    Meanwhile, the negotiations continue in secret, shutting out the users who will be impacted by the TPP. What we know about the agreement is derived primarily from a leaked US proposal that leaked on the Internet in February last year. This is the first in a series of blog posts that explore the various flaws in that proposal and how these flaws would hurt the rights of citizens in the 21st century.

    Blind people all over the world find it hard to access e-books and other digital materials. These materials often come wrapped in digital locks (called digital rights management, or “DRM”) that are incompatible with “adaptive technologies” – technologies that the blind use to convert text to audio, braille, or other accessible formats. Breaking this DRM is illegal in the US, unless the Copyright Office specifically permits it for a limited time.

    Even with the Copyright Office’s permission, it would be unlawful to sell tools that allow the blind to break DRM. As a result, 21st century technology that promises to open new doors for individuals with disabilities is stunted and locked away from the marketplace.

    The rule that prevents the blind from breaking DRM to access e-books is part of a law called the Digital Millennium Copyright Act (DMCA). The DMCA was passed in 1998. It imposes a blanket ban on breaking DRM on any digital product that contains copyrighted content. For example, a hobbyist could not break DRM on DVDs to take small clips from a popular film or television show and use it in her mash-up. A teacher or student could not make compilations of video clips for a classroom presentation. These are just two of many examples of routine and lawful uses that are not possible because of the rules put in place by the DMCA.

    Given our reliance on digital technologies and the harmful effects of the DMCA’s DRM provisions, Congress should revisit the DMCA’s DRM scheme to ensure that it serves the needs of citizens in the 21st century. For instance, Congress should codify a permanent exemption to permit blind people to circumvent certain DRM and purchase tools that let them do so. But the obligations the US would be binding itself to by signing the TPP would constrain Congress’ ability to fix the DMCA’s DRM scheme. They would also constrain the ability of the other TPP countries to adopt copyright laws that do not harm their citizens.

    The US Proposal on DRM

    The US proposal on DRM would require all TPP countries to replicate the DMCA. TPP countries would have to impose a blanket ban on breaking DRM even for lawful purposes. The ban would be subjected to a narrow set of exceptions, again following closely the limited exceptions enumerated in US law. These exceptions do not cover the vast majority of lawful uses that are permitted under copyright law, such as the ability of the blind to access e-books.

    To make matters worse, the TPP would prevent countries from expanding these exceptions or adding new ones. Thus, TPP countries, including the US, would be prevented from introducing new exceptions to fit the needs of its citizens.

    Could an agency rule-making process come to rescue?

    The TPP would only permit a very limited opportunity for countries to add new exceptions to the DRM provisions, through an administrative rule-making similar to the one the Copyright Office undertakes once every three years in the US. Under this proceeding, called the “triennial rulemaking”, the Copyright Office examines whether the DMCA will prevent a “particular class of users” from making certain lawful uses of copyrighted works. If a user group proves such inability, the Office grants them a temporary exemption for a period of three years.

    To grant the exemption, the Copyright Office imposes substantial burdens of proof on users. In the rulemaking proceedings in 2003 and 2006, to win exemptions for the blind, representatives of the American Foundation for the Blind had to purchase e-book titles, attempt to access them, and describe to the Copyright Office how gaining such access was impossible. This means they had to seek assistance from sighted individuals in the process.

    Imposing this process on developing countries will create even more burdens for users than it does in the US. User groups in the US find the proceeding burdensome and have to devote significant scarce resources in order to secure their rights. This strain on resources is likely to be greater for groups representing users in the developing world.

    The TPP must allow its member countries to craft flexible DRM rules that reflect the needs of modern communities. The current design of the TPP would not permit that.