NGOs Oppose US Proposal On Copyright For Trans-Pacific Trade Deal

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At least a dozen non-governmental groups from several continents have issued a joint statement opposing apparent copyright language proposed by the United States in the ongoing Trans-Pacific Partnership (TPP) agreement negotiations. The groups said the draft language, aimed at curbing copyright infringement, could undermine critical copyright exceptions, which are built into laws in order to protect society’s access to public knowledge.

A leaked 3 August draft text of a US proposal for the TPP “uses the most restrictive three-step test language, extends the test to exceptions and limitations not currently under the test and jeopardizes countries’ ability to set what best fits their needs,” the statement said. “The US proposal misses opportunities to use the TPP to strengthen limitations and exceptions further.”

The joint statement is available on the website of the Electronic Frontier Foundation (EFF), here.

EFF also has posted an “infographic” on what is wrong with the TPP, here.

Signers to the statement come from Australia, Canada, Chile, Mexico, New Zealand and the United States, and include EFF, Knowledge Ecology International, Public Citizen, Public Knowledge (added this week). There do not appear to be any signatories to the letter from Asia yet.

The next round of TPP talks will be held from 6-15 September in Leesburg, Virginia. All texts associated with the negotiation are kept highly confidential from the public, but are made available to a range of industry advisers.

According to the groups, the US proposal on copyright announced in the July round (IPW, Bilateral/Regional Negotiations, 4 July 2012) of TPP talks in San Diego would apply the three-step test to any limitations and exceptions, which they said would extend the test beyond current international standards as reflected in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

“We note that the Berne Convention, Rome Convention, and … (TRIPS) have several articles that explicitly permit specific limitations and exceptions without having to comply with the three-step test,” they said.

For instance, they cited Article 10 of the Berne Convention for the Protection of Literary and Artistic Works, and Arts. 7 and 8 of TRIPS, as not subject to the three-step test.

The three-step test is also the subject of debate in the World Intellectual Property Organization Committee on Copyright and Related Rights (SCCR) (IPW, WIPO, 17 July 2012).

They specifically cited concerns for internet service providers from the higher levels of protection and lesser limitations. They also favourably mentioned a parallel proposal by New Zealand, Chile, Malaysia, Vietnam and Brunei that leaves it to each country to decide what is best for them.

“With the TPP proposals, the USTR [US Trade Representative’s office] is putting peoples’ freedoms and ability to innovate at risk, while imposing greater barriers to development and human rights particularly for those from developing countries,” they said. “The scope of the text proposed by the US and Australia will restrict rights that are essential to access to information, culture, science, education, and innovation.”

The groups closed by urging developing countries to “oppose USTR’s maximalist approach to intellectual property” and for negotiating parties to adhere to international standards, including public interest flexibilities.

Finally, they urged the release of the negotiating documents to allow a proper public debate over what is best for all members of society in the negotiating countries, not just businesses.

William New may be reached at

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  1. says

    From the above article

    — “We note that the Berne Convention, Rome Convention, and … (TRIPS) have several articles that explicitly permit specific limitations and exceptions without having to comply with the three-step test,” they said.

    As was mentioned to Mr. Jamie Love of KEI in his interview with Carlo Scollo Lavizzari of STM in his WIPO SCCR 24 video interview * (beginning approx 23:00), the Berne exceptions that are not subject to the 3-step test are (in CSL’s opinion – my rough transcription)

    — (Those other Berne exceptions are important)

    — ” … where they go to adaptation or republication … specifically those other exceptions are linked to a creative process like quotation in a new work or inclusion of current events inside a published work or a broadcast new work.”

    Those exceptions may not be blanket reproduction rights in-and-of-themselves as might be inferred from the EFF/KEI quote referenced above and the released ‘Joint Statement of civil Society’.

    * see

  2. says

    In a 26 JULY 2012 letter to Ms. Barbara Weisel in the US Trade Rep Office, Knowledge Ecology International (KEI) commented:

    — “Robust user rights are needed for the placeholders for limitations and exceptions
    Article 4.8 provides placeholders for copyright limitations and exceptions. We note that proposals in this area should preserve the flexibility to create (and) apply such limitations and exceptions that are consistent with the Max Planck Declaration on ‘A balanced interpretation of the three-step test.'”

    And the Max Planck / Munich Declaration itself is ‘consistent’ with just what?

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