“Free Trade” Agreements Would Be More Fair With Fair Use At Their Core
by Timothy Vollmer
During Fair Use Week organizations and individuals are publishing blog posts, hosting workshops, and sharing educational resources about the importance of this essential limitation to the rights endowed by copyright. Fair use (and in other countries, the related fair dealing) is a flexible legal tool that permits some uses of copyrighted material without permission from the original rights holder, such as for use in news reporting, criticism, teaching, and other reasons.
Fair use and fair dealing are both a part of the larger constellation of limitations and exceptions to copyright. These limitations are a necessary check on the exclusive rights granted to copyright holders, and it’s important to expand and strengthen limitations and exceptions through fundamental copyright reform in order to protect the rights of the public in accessing and using creativity and culture.
There are now over 1.2 billion CC-licensed works available, and these will always be free for anyone to use and share. CC licenses work because of the existing contours of copyright. We sometimes complain about the numerous negative aspects of our collective copyright rules—such as absurdly long terms, disproportionate infringement penalties, and a pervasive permission culture. At the same time, we also need to support and expand the features of our copyright law that make possible increased access to information, educational activities, and freedom of expression. We all can use the Creative Commons licenses to create our own commons of content that can be freely re-used and shared. But we still rely on (and need to expand) the fundamental checks and balances to copyright law to do things that would never be possible using open licensing alone. This is why we celebrate Fair Use Week.
Beyond national legislation that includes provisions on fair use/dealing and other limitations and exceptions to copyright, where else do these discussions take place? Trade agreements. We know that copyright and other intellectual property rights will continue to be included in bilateral and multilateral trade negotiations, such as in the continuation of the Trans-Pacific Partnership (now renamed “CPTPP” to stand for Comprehensive and Progressive Agreement for Trans-Pacific Partnership), the renegotiation of the North American Free Trade Agreement (NAFTA), and the talks on the Mercosur-EU trade agreement.
A common theme across all these trade agreements is an increase in copyright protection, enforcement measures, and infringement penalties aimed to benefit incumbent industries and rights holders. What is usually missing? The necessary checks and balances that protect and defend the rights of users and the public interest to access, share, and re-use content in the public good. So how do these trade agreements address limitations and exceptions to copyright? Let’s take a look.
In late 2015 we wrote in our policy analysis that the TPP is a direct threat to the public interest and the commons. It downplays the importance of the public domain and exceptions and limitations, increases the term of copyright protection, and demands harsh infringement penalties.
The U.S. has been out of the picture since January 2017, when President Trump withdrew the United States from the agreement three days into his administration. Since that time, the name of the trade pact has been changed from the Trans-Pacific Partnership to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The ministers of the remaining countries negotiating the agreement have agreed on a set of about 20 “suspended provisions.” Most of the provisions in the chapter on intellectual property have been suspended, meaning they likely will be excluded from future negotiations. This includes the proposed 20 year increase in copyright term, and the introduction of criminal penalties for circumventing technological protection measures. Recently the 11 remaining countries released the updated negotiating text and associated documents.
One provision that remains intact is that the copyright enforcement provisions are mandatory, while exceptions and limitations are considered optional. This is laid out in Article 18.71:
“Each Party shall ensure that enforcement procedures as specified in this Section are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies that constitute a deterrent to future infringements.”
At the same time, it’s good to see that Section 18.66 is also preserved:
“Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions)”
Even though the TPP does not make exceptions and limitations mandatory, the text requires that nations seek a better balance between the rights of authors and the public.
No one—at least no one from civil society—has seen the text that is being negotiated by the NAFTA countries, so it’s difficult to give any sort of definitive commentary and policy analysis about the details in the proposal. As we’ve mentioned again and again, an absolutely fundamental flaw with NAFTA, CPTPP, EU-Mercosur, and nearly all other trade agreements is that the texts and negotiating meetings are entirely opaque to the populations those agreements would cover. They are developed and negotiated in secret—at least from the perspective of the public and civil society. Sometimes industry representatives and other business interests are invited to view texts or give recommendations on proceedings, typically after they’ve agreed to a non-disclosure agreement (NDA) forbidding them from sharing the information with anyone else.
With little to no information about what’s going on behind closed doors, we assume that the negotiating parties are using various parts of the TPP or the U.S.-Korea free trade agreement (KORUS) as a framework concerning the IP chapter. But in the lead up to the re-negotiation of NAFTA, we urged the negotiating ministries to ensure that the existing copyright provisions in NAFTA should not be expanded to create new (and likely more onerous) rules. We outlined that if the copyright provisions are to be reopened, a negotiating objective should at a minimum be to advocate for stronger protections for copyright limitations and exceptions; user rights should be granted a mandatory and enforceable standing alongside the rights of authors. Creative Commons and thousands of other interested parties submitted comments to the Canadian, Mexican, and U.S. consultations regarding the negotiating priorities and objectives. Are they listening? It’s not clear that any of our concerns (or those of like minded organisations working in the public interest) are reflected in the priorities published by the member governments (for example, see the summary U.S. objectives).
In November of last year CC joined international copyright experts to draft and publish the Washington Principles on Copyright Balance in Trade Agreements. The statement calls on trade negotiators “to support policies like fair use, safe harbor provisions, and other exceptions and limitations that permit and encourage access to knowledge, flourishing creativity, and innovation.” Whether these recommendations are being considered by the negotiators is anyone’s guess.
Last year we also published a policy analysis covering several copyright-related issues presented in the draft intellectual property chapter of Mercosur-EU trade agreement.
Only a few chapters of the draft Mercosur-EU have been made available for public inspection. In November 2016 the EU released a draft of the chapter dealing with intellectual property, which at the time of our writing was the most recent publicly available version. In our analysis we criticized several aspects of the proposal, including the provision to extend the duration of copyright protection for those countries that do not already adhere to the life + 70 year term. And we called on the negotiating countries to take a more serious approach to protecting user rights by expanding limitations and exceptions. The draft chapter on intellectual property doesn’t include any of the even minor safeguards introduced in the latest trade agreements (such as the TPP) that promote and protect balance in copyright agreements.
But a more recently leaked version (based upon discussion at the 28th round of negotiations in July 2017) includes some consolidated text (provisions to which both parties agree) as well as various proposals and counterproposals of the parties. The new chapter shows that there is at least is some minimal agreement on provisions that could be beneficial to users by championing a more balanced approach to IP policy. For example, the leaked text contains the following provision regarding “objectives” for the IP chapter:
“Achieve an adequate and effective level of protection and enforcement of intellectual property rights that provides incentives and rewards to innovation while contributing to the effective transfer and dissemination of technology and favouring social and economic welfare and the balance between the rights of the holders and the public interest.”
This text was not previously included included in the public draft of November 2016, and could be seen as a positive addition in service of user rights and the public interest.
In addition, the new text contains the following provision with regard to “principles” for the IP chapter:
“In formulating or amending its laws and regulations, each Party may establish exceptions and flexibilities permitted by the multilateral instruments to which the Parties are Signatories.”
Again, such a characterization could be seen in a positive light if carried throughout the IP chapter and actually agreed upon by all parties.
However, as Jorge Gemetto explains on the Communia Association blog, the Mercosur countries need to think carefully before accepting the devil’s bargain with regard to other aspects of the IP chapter. The Europeans keep pushing for increased copyright term and other provisions that would be beneficial to incumbent rights holders. He says, “the 2016 draft essentially reads like an attempt by the European Union to impose the restrictive elements of its own copyright rules on the Mercosur countries.”
As we’ve seen trade agreements are an imperfect (and oftentimes abused) mechanism to make fair and balanced copyright rules. It’s obvious that the process of copyright policy making needs to drastically change in order to adequately take into consideration the rights of users and the public interest. It’s safe to assume that copyright and other intellectual property rights will continue to be included in bilateral and multilateral trade negotiations, so it’s imperative that the negotiations be radically reformed to make the proceedings transparent, inclusive and accountable. It’s absolutely crucial that negotiators lift the un-democratic and counterproductive secrecy that has pervaded most of the recent discussions.
It’s clear that fair use and other limitations and exceptions are vital to a healthy copyright system. During Fair Use Week and the rest of the year, let’s continue to support and expand these critical user rights.