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

    Published on 30 August 2012 @ 9:48 pm

    By , Intellectual Property Watch

    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 wnew@ip-watch.ch.

     

    Comments

    1. john e miller 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 http://keionline.org/sccr24videos

    2. john e miller 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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    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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