US Proposes 3-Step Test For Copyright Exceptions In Trans-Pacific Trade Talks

The Office of the United States Trade Representative (USTR) on 3 July announced the proposal of a new provision for a trade agreement that will put copyright exceptions and limitations to a 3-step test. The text of the provision was not made available to the public, and reaction to the news by public interest groups has been cautious.

“For the first time in any U.S. trade agreement,” USTR said in an official blog, “the United States is proposing a new provision, consistent with the internationally-recognized ‘3-step test,’ that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence.”

USTR said that “an important part of the copyright ecosystem is the limitations or exceptions placed on the exercise of exclusive rights in certain circumstances,” such as fair use. The US Digital Millennium Copyright Act (DMCA) provides safe harbors to limit liability so that “legitimate providers of cloud computing, user-generated content sites, and a host of other Internet-related services who act responsibly can thrive online.”

The proposal is being made at the current round of TPP negotiations in San Diego this week, USTR said, adding that it was shared with “a wide range of stakeholders.” This was questioned by some of the leading public interest groups, who had not been among the stakeholders.

Knowledge Ecology International President James Love blogged about the proposal, raising doubts. “KEI’s concern is that if the 3-step test is introduced, at a minimum it just gives right holders two chances to knock something out (once at WTO [the World Trade Organization], and once at TPPA),” Love said. “But it could be worse, if this is designed to apply to the many areas of the Berne and Rome conventions that are not now subject to the three step test.”

The Berne Convention for the Protection of Literary and Artistic Works is here.

“Not all Berne exceptions are subject to 3-step test: Articles: 2(4,7), 2.bis, 10, 11, 11.bis(2-3), 13(1-2) and the Appendix are not subject to the 3-step test, and neither are the first sale doctrine (Article 6 of the TRIPS) or the control of anticompetitive practices in contracts (Article 40 of the TRIPS),” he said. “Article 15(1) of the Rome Convention is also not subject to the three step test. Will the secret TPPA text change this?”

TRIPS is the 1994 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights.

The KEI post chronicles the progression of the three-step test in copyright exceptions, from the Berne Convention, through TRIPS, to the World Intellectual Property Organization Copyright Treaty, and into the bilateral and regional agreements of recent years.

Public Knowledge also blogged about the USTR announcement, raising several questions.

“[T]he proposed provision (or provisions) must not be limited to the language articulated by the USTR but must permit extension of newer limitations and exceptions that are suitable to the digital environment and to local conditions in the TPP countries,” wrote Rashmi Rangnath, staff attorney at Public Knowledge. “Furthermore, it is unclear whether the provision will call for mandatory limitations and exceptions or merely provide that parties may provide for limitations and exceptions. A permissive provision would continue the trend of treating user interests as secondary concerns that can be eroded by future international agreements that increase the scope of exclusive rights.”

Rangnath also raised a broader question about user rights in the TPP treaty. “[W]hile the inclusion of provisions on limitations and exceptions is a positive development, it does not address the adverse impacts that several TPP provisions would have on user rights,” she said. “For instance, the TPP’s proposals to increase stringent enforcement mechanisms and include unbalanced provisions on technological protection measures continue to threaten user interests.”

There did not appear to be any public statements by the copyright industry in reaction to the announcement.