The full 6000+ page text of the controversial 12 party free trade agreement was officially released on 5 November, with the New Zealand government reportedly starting the flood. When negotiations started 7 years ago it was just one of several relatively obtuse and obscure free trade agreements Australia was participating in. But lobbying by consumer advocates around the world have brought it and agreements like it into the public spotlight, resulting in huge media coverage when it was agreed last month and much debate as to its merits. It’s been particularly big news in intellectual property (IP) circles, as it contains extremely detailed provisions that will have a huge impact on most of the countries that sign up to it.
But what does it actually say about copyright, and what does that mean for Australia?
For those who don’t have time to drag themselves through the 73 pages or so of the IP chapter, here are the highlights for copyright in Australia:
- The government is right – it probably won’t require us to change our copyright law: While the IP chapter is long and, some would argue fairly draconian, it doesn’t actually herald massive changes for copyright in Australia. That’s because most of the copyright provisions align pretty closely with those of the Australia-United States Free Trade Agreement (AUSFTA), which we signed and implemented more than 10 years ago. There are some differences in language between the two (eg in the anti-circumvention provisions) the implications of which still need to be worked out. But it doesn’t look like any of these will require the government to rush out and make major changes to our current law before it can ratify.
- With one possible exception, which might be a good thing: The TPP should motivate the government to fix a long running discrepancy (some would say error) in our copyright law. As part of our AUSFTA implementation we introduced safe harbours to protect those who provide internet services – they aren’t liable for infringements carried out by people using their services as long as they meet a series of requirements, including complying with a prescribed notice and takedown scheme. The US, on whose law this provision is based, extends this safe harbour scheme to a broad group of “online service providers”, which includes not only ISPs but also libraries, universities and groups like Youtube and eBay. Australia only granted it to “carriage service providers” or ISPs. People have argued ever since about the effect of Australia’s provisions and whether they comply with the AUSFTA. There have been successive government consultations on this issue since 2005 and as recently as last year, in its Online Copyright Infringement Discussion Paper, the government acknowledged that the broader category of online service providers, including universities and online search engines “should be captured by the safe harbour scheme”. One thing is certain – service providers in Australia are more vulnerable than they are in the US, creating a disincentive to host search engines or user services here. The TPP has a slightly different definition of “internet service provider” from the AUSFTA which arguably supports the US approach. Hopefully this will provide the push we need to put our intermediaries on a level playing field internationally.
That doesn’t mean that the TPP won’t have an impact on Australian copyright law…
- It locks us in: If there’s one thing we’ve learnt from the last few decades, it’s that copyright needs to adapt as technologies and social norms change. We’ve seen a whole series of changes to copyright law over that time, and rightly so – in the 80s we could never have predicted where we are now, in the world of Youtube, peer-to-peer file sharing and cloud storage. But agreements like the TPP try to do exactly that – predict what rules will be needed in future decades. With its highly prescriptive text and inflexible mandates, the TPP effectively locks us in to copyright laws designed for today’s climate. What happens when we want to change our law? With bilateral agreements like the AUSFTA you can negotiate an update with the other party. But plurilaterals like the TPP are likely to be harder to adjust – once they’re signed into law in 12 different countries, what kind of effort will be needed to make even the smallest of changes? There is a requirement for the TPP to be reviewed every 5 years, but there are real questions as to how effective such a review provision will be. Will problems with copyright ever be a big enough motivator to reopen the whole TPP can of worms?
- The ISDS clause opens up the possibility of future challenges: IP is explicitly listed in the TPP as an “asset” that is subject to the Investor State Dispute Settlement (ISDS) provisions, which let companies sue governments for, amongst other things, ‘expropriations’ of their property. ISDS provisions are included in other treaties Australia is subject to and companies have not been shy about making use of them to protect their IP, with Philip Morris currently suing the Australian government over our plain packaging cigarette laws. The TPP will open up the gate to suits by US companies, who are especially fond of using ISDS, and any decision by the Australian government to introduce fair use, or other consumer-friendly exceptions and limitations, could provoke a challenge. There is language in the TPP that should protect new copyright exceptions as long as they comply with the Berne three step test, but what the three step test actually means is still hotly debated. We have had some help with this recently from the ALRC, which declared that it believes fair use complies with the three step test, but that won’t stop companies from arguing otherwise in the secretive ISDS tribunals.
- Will it tie our hands on orphan works?: There’s also a question whether the TPP would prevent its signatories from limiting remedies for breaches that involve orphan works (ie works that have been abandoned or whose owners cannot be located). This approach to the orphan works problem was proposed by the US Copyright Office earlier this year, and it could be a good way of providing some protection for those looking to make greater use of this large pool of untapped resources. However, both Knowledge Ecology International and the Electronic Frontiers Foundation have questioned whether it would be prohibited by highly prescriptive provisions on remedies in the TPP IP Chapter. Others do not agree there is any conflict between the TPP and the US Orphan Works proposal, but it might be an area to watch.
On the bright side…
- It’s better than other agreements when it comes to user rights: The TPP is unusual among international copyright agreements in that it includes some language intended to recognise, even provide some protection for, users rights. This is probably thanks to the growing awareness of these treaties among both the public and governments, and international pressure on the drafters to ensure balance in the text. To quote the USTR, the TPP contains “an obligation to promote balance in copyright systems through exceptions and limitations to copyright for legitimate purposes, such as criticism, comment, news reporting, teaching, scholarship, and research.” The actual language in the treaty is pretty flexible and will be open to interpretation, but there is no question that it strengthens countries’ rights (and motivations) to include balancing provisions in their domestic implementation, and should help to defuse any potential ISDS challenge to new exceptions or limitations.
So the bottom line is, the TPP doesn’t change much for copyright in Australia, but it is very detailed and very prescriptive. It may cause problems in the future, and provide a few benefits. In general the protections for rightsholders are very strong and the protections for users are more varied – but this is still an improvement on the trend of every other international copyright agreement since the Berne Convention (except of course the recent Marrakesh Treaty for the blind and visually impaired, which the TPP nods to in its section on limitations and exceptions).
That isn’t to say the TPP isn’t a game changer in the international copyright ecosystem. Almost all its signatories other than Australia and the US are going to have to make major changes to their copyright laws before they can ratify the agreement – especially Brunei, Malaysia, New Zealand and Vietnam, who do not yet have free trade agreements with the US. From term extensions to the introduction of anti-circumvention laws, these changes are mostly in favour of rightsholders and mostly controversial internationally – except hopefully for the positive steps the TPP takes to establish obligations for copyright limitations and exceptions. And that is without even touching the provisions on patents. Whether the agreement can survive the scrutiny of 12 governments and make it to ratification will be interesting to see.
Want to know more? Try this excellent section by section commentary on the TPP final copyright provisions by ADA Board Member and University of Sydney Associate Professor Kimberlee Weatherall.