Principles for Positive Proposals in Articles 1 and 4 of the TPP Mike Palmedo American University July 2, 2012

What is the purpose of intellectual property?

infojustice.org/tpp

TPP Art 4.1 expands right of reproduction to “temporary storage in electronic form” Malaysia Copyright (Amendment) Act: 2012 sec. 9(b), amending section 13(2) (adding exception for “the making of a transient and incidental electronic copy of a work made available on a network if the making of such copy is required for the viewing, listening, or utilization of the said work”) Singapore Copyright Act: Sec. 38A (permitting temporary or transient reproductions made in the course of communication) Australia Copyright Act: Sec. 43A and 43B (permitting temporary reproductions as part of making or receiving a communication or as a necessary part of using a work) New Zealand Copyright Act: Sec. 43A (permitting transient or incidental reproductions)

TPP Art 4.1 expands right of reproduction to “temporary storage in electronic form” Chile-US FTA Art. 17.7(3) fn. 17: “For works, other than computer software, and other subject matter, such exceptions and limitations may include temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a lawful transmission in a network between third parties by an intermediary; or (b) a lawful use of a work or other subject-matter to be made; and which have no independent economic significance.”

TPP Art 4.2 allows rightholders to block parallel trade TRIPS Art. 6: “For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.” WCT Article 6.2: (1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership. (2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author

TPP Art 4.3 allows rightholders to block second hand sales WCT Article 6.2: (1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership. (2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author

TPP Art 4.5 extends copyright terms beyond multilateral norms Studies arguing this has no benefit to the public include: Douglas Gomery, "Research Report: The Economics of Term Extension for Motion Pictures. Marci A. Hamilton, Copyright Duration and the Dark Heart of Copyright, 14, Cardozo Arts and Entertainment Law Journal. 1996. Dennis S. Karjala, The Term of Copyright, in GROWING PAINS: ADAPTING COPYRIGHT FOR LIBRARIES, EDUCATION, AND SOCIETY. 1997. Cecil C. Kuhne III, The Steadily Shrinking Public Domain: Inefficiencies of Existing Copyright Law in the Modern Technology Age, Loyola Law Review, 2005. Edward Rappaport. Congressional Research Service. "Copyright Term Extension: Estimating the Economic Values. 1998. Jeremy Reichman. "The Duration of Copyright and the Limits of Cultural Policy." Cardozo Arts and Entertainment Law Journal. 1996.

TPP Art 4.6 applies copyright extension to existing works Again, no benefit to society

TPP Art 4.8 – opportunity for good text on limitation and excepts Principles from the Washington Declaration on IP and the Public Interest (infojustice.org/washington-declaration) give States the greatest possible flexibility in adopting limitations and exceptions that are appropriate to their cultural and economic circumstances. mandatory minimum limitations and exceptions. “open-ended” limitations in national copyright legislation, in addition to specific exceptions. address directly the needs of persons with specific medical conditions and disabilities, including those with print disabilities. enable libraries, museums, archives and other “institutions of memory” to fulfill their public interest missions, while assuring that cultural and educational institutions take advantage of existing flexibilities. assure fair access to and use of educational materials from early literacy acquisition in the family setting through institutions of primary, secondary and higher education.

TPP Art 4.8 – opportunity for good text on limitation and excepts Two Principles from the Max Planck Institute's Declaration on a Balanced Interpretation of the Three Step Text (http://bit.ly/NosPMp) The Three-Step Test does not require limitations and exceptions to be interpreted narrowly. They are to be interpreted according to their objectives and purposes. The Three-Step Test should be interpreted in a manner that respects the legitimate interests of third parties, including interests deriving from human rights and fundamental freedoms; interests in competition, notably on secondary markets; and other public interests, notably in scientific progress and cultural, social, or economic development.

TPP Art 4.9 creates new obligation that can block lawful use U.S. proposal for TPP – “any person who (i) circumvents without authority any effective technological measure that controls access to a protected work, performance, phonogram, or other subject matter… shall be liable and subject to [criminal] penalties.” WIPO Copyright Treaty - requires “effective legal remedies” for circumventions carried out in acts that “are not authorized by the authors concerned or permitted by law.”

General provisions – opportunity for better Doha Declaration carveout Specify that when TRIPS-Plus intellectual property provisions would hinder access to healthcare technologies, the Doha carveout trumps the IP obligation Acknowledge the commonsense principle that prices affect access Omit references to specific diseases and to national emergencies or situations of extreme urgency

TPP Art 1 refers to multilaterally negotiated international IP norms Radical proposal keep Article 1 obligations that oblige TPP countries to adhere to TRIPS and the WIPO treaties debate which other multilateral treaties should be adhered to Strike the remainder of the TPP chapter Similar in essence to the original P4 agreement upon which the TPP builds. Similar in essence to the earlier proposals by Chile and New Zealand

Thank you. Mike Palmedo American University 571-289-3683 mpalmedo@american.edu infojustice.org/tpp