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

    Published on 4 July 2012 @ 3:08 pm

    By , Intellectual Property Watch

    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.

    William New may be reached at wnew@ip-watch.ch.

     

    Comments

    1. Trans-Pacific Partnership Negotiations, Protests in San Diego – The Netizen Project says:

      [...] Free Trade agreement between Mexico, the United States and Canada. The provisions of the TPP on intellectual property are the target of Internet freedom activists who believe that they will inflict collateral damage [...]

    2. Online Global Week in Review 13 July 2012 from IP Think Tank | Duncan Bucknell says:

      […] proposes 3-step test for copyright exceptions in Trans-Pacific trade talks (IP Watch) (Ars […]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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