1. Trans-Pacific Partnership Agreement (TPP)
Potential Impacts of the TPP on Copyright
Krista L. Cox,
Director of Public Policy Initiatives, Association of Research Libraries

2. What is the TPP? Trans-Pacific Partnership Agreement
12 negotiating parties: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States
Represents ~40% of world’s GDP
Expected to eventually cover the entire APEC region
~40% of world’s population; >50% of world’s GDP

3. History P4 (Brunei, Chile, New Zealand, Singapore)
Expanded to 9 countries ( )
First round in March 2010
Eventually added Canada and Mexico (December 2012) and Japan (August 2013)
Final full round August 2013

4. Additional Background
Negotiators and trade ministers are currently meeting in Atlanta, GA reportedly to finalize the agreement
Final agreement will have 29 chapters
Different priorities for each country
Key chapters related to copyright, libraries, access to information
Intellectual property
Investment

5. Transparency No official release of the text
Leaks of the Intellectual Property Chapter:
March 2011 (US proposal)
July 2012 (limitations and exceptions only),
November 2013 (consolidated)
October 2014 (consolidated)
August 2015 (consolidated)
Leaks of the Investment Chapter:
July 2012
March 2015

6. Intellectual Property Chapter

7. General Provisions Recognition of the public interest
Recognition of the need to “promote innovation and creativity” and “facilitate the diffusion of information, knowledge, technology, culture and the arts”

8. Public Domain
Chile and Canada proposal “acknowledging the importance of preserving the public domain”
Opposed by the US and Japan

9. Copyright Term Based on the life of the author
US (+ US FTA countries): Life + 70 years
Mexico: Life years
Life + 50 years
Domestic legislation
Corporate works: 50, 70, 75 or 95 years
Japan: Berne rule of shorter term

10. Technological Protection Measures (1/2)
US 2011 proposal:
Separate and independent cause of action
Closed list of limitations and exceptions for circumvention
3-year rulemaking for other limitations and exceptions; substantial evidence burden
Controversies
No relationship to underlying infringement
No permanent limitations and exceptions permitted

11. TPMs (2/2) Current language:
Violation of anti-circumvention: “independent of any infringement that might occur under the Party’s law on copyright . . .”
Eliminates specific L&Es and three-year rulemaking process.
Allows L&Es through legislative, regulatory or administrative process
Removal of “substantial evidence” burden

12. Limitations and Exceptions (1/2)
US proposal in July 2012
Shall confine L&Es to the “three-step test”
Seek to achieve balance, giving due consideration to criticism, comment, news reporting, teaching, scholarship, and research
Controversies:
What is subject to the three-step test?
Permissive, not mandatory

13. Limitations and Exceptions (2/2)
Language now acknowledges L&Es permitted by TRIPS, Berne, WCT and WPPT
Mandatory or permissive? “Shall endeavor to achieve an appropriate balance . . .”
Inclusion of facilitating access for the visually impaired; Marrakesh Treaty reference
Footnote confirming commercial aspects may have legitimate purpose

14. ISP liability (1/3) US 2011 proposal
Highly prescriptive, notice-and-takedown modeled off DMCA (but lacking some privacy protections)
Notice-and-takedown
Termination of accounts of repeat infringers
Not all countries have ISP liability regimes (some countries not members to WCT/WPPT)

15. ISP liability (2/3) Canada (Bill C-11) Japan and Mexico
Notice and notice system
Formally implemented in 2015
Japan and Mexico

16. ISP liability (3/3)
Flexibilities preserved for Canada’s system, but requires system to exist on date of entry into force
Footnote allowing Japan to maintain its system
Proposed footnote acknowledging that failure to qualify for safe harbor does not itself result in liability; without prejudice to L&Es and other defenses

17. Other issues Parallel importation Ban on formalities Temporary copies
Removed at end of 2013
Ban on formalities
Appeared in October 2014 leak; removed in August 2015 leak
Temporary copies
Removed in the October 2014 leak
Remedies

18. General Concerns Locking-in copyright provisions
Openness to change/innovation?
Creation of new global norms in a non-transparent forum, not all countries/interests represented

19. Investment Chapter

20. Investor State Dispute Settlement
Intellectual property considered an “investment”
Allows for investor-state tribunals
Corporations can sue a government directly
Well-known conflicts of interest
Non-transparent forum

21. Questions?
Any questions?
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