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The Trouble with the TPP: Copyright Law and the DMCA

"Stop Fast Track" rally in Washington D.C., April 2015. Attribution: AFGE

No matter how you feel about the recent presidential election, there’s no denying that the Trans-Pacific Partnership, or the TPP, took center stage on the campaign trail. Yet, how many voters can actually say they are well-versed on the topic?

The Trans-Pacific Partnership is a trade agreement among twelve Pacific Rim countries including Australia, Canada, Japan, Malaysia, Mexico, Peru, United States, Vietnam, Chile, Brunei, Singapore and New Zealand. The agreement, which has not yet entered into force, essentially outlines new global trade regulations that are purported to “increase Made-in-America exports, grow the American economy and support well-paying American jobs.” Within the agreement, the TPP outlines various new agreements that apply to its twelve member states, including customs administration, competition and business facilitation, transparency and anti-corruption and copyright and intellectual property provisions, which is what we’ll discuss further here today.

The TPP was a source of contempt for Democrats and Republicans alike. Vastly supported by President Obama, president-elect Donald Trump espoused the TPP as another measure towards globalization, disavowing the trade deal as another piece of global legislation the United States should forgo (it’s worth noting that Trump’s opponent, Hillary Clinton, also opposed the TPP). Now that the world is watching to determine how our trade agreements with various states will play out under a Trump presidency, the TPP issue becomes vastly important for artists and creators whose global copyright protections will rest on whether the U.S. chooses to adopt the TPP agreement.

 

TPP
Orange = Signatories
Blue = Potential future members

Is the decision to forgo the TPP agreement necessarily bad for artists and U.S. copyright law? In this article, we’ll discuss what the TPP means for U.S.-based artists, its effects on major copyright provisions including the Digital Millennium Copyright Act, and whether a not U.S. assignation to the agreement would have a damaging effect on the creative economy.

 

Copyright Law and the TPP

The TPP’s copyright provisions have been a source of controversy since their inception, mainly because the agreement would force certain member nations to adopt broader copyright duration regulations that some consider an attack on free creative expression. Interestingly, under the TPP’s copyright provisions, not much stands to change for U.S. based artists. TPP Article 4.3 provides that copyright terms shall be “not less than the life of the author and 70 years after the author’s death,” the same exact copyright duration regulations currently imposed in the U.S.

Most other countries in the agreement do not currently have such lengthy protections for copyright holders, as the majority are governed by the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention, the world’s current framework for upholding global copyright laws, requires its signatories to treat the copyright of works of authors from other signatory countries (known as members of the Berne Union) at least as well as those of its own nationals. For example, French copyright law applies to anything published or performed in France, regardless of where it was originally created.

Most member countries adhering to the Berne Convention have looser copyright laws than those in the U.S. In most countries, copyright laws protect a foreign national’s copyright for the lifetime of the creator plus 50 years. For example, Canada’s current copyright laws last the lifetime of the creator plus 50 years after their death, or 70 years from the date of publication. Interestingly, the U.S. is a member of the Berne Convention, which means they’d have to honor Canada’s copyright laws under the Berne Convention. The TPP however, threatens to override this and extend Canada’s copyright terms to those of the U.S., by at least another 20 years, even for works that have already entered the public domain. It’s clear that U.S. trade negotiators are trying to push other member states to get on board with the U.S.’s lengthier copyright protections (which, as we’ve discussed in Art Law Journal, has very lucrative corporate interests in mind).

Generally speaking, one would think that extending copyright protections would be a good thing, but leading economists, copyright scholars and artists alike are struggling to agree that the TPP would actually benefit copyright law. Instead, many feel that extending copyright provisions this would further shield monopolies and deep-pocketed corporations while hurting the little guy who references their copyrighted works. Especially troubling is the fact that the new copyright provisions would apply to works that are already in the public domain, meaning that works that are already being used freely would be reclassified and create a new wave of copyright liability. In fact, even U.S. officials have stated they understand why the copyright length terms may be problematic and have agreed to a re-shaping if necessary.

TPP

A summit with leaders of the (then) negotiating states of the Trans-Pacific Strategic Economic Partnership Agreement (TPP). Pictured, from left, are Naoto Kan (Japan), Nguyễn Minh Triết (Vietnam), Julia Gillard (Australia), Sebastián Piñera (Chile), Lee Hsien Loong (Singapore), Barack Obama (United States), John Key (New Zealand), Hassanal Bolkiah (Brunei), Alan García (Peru), and Muhyiddin Yassin (Malaysia). Six of these leaders represent countries that are currently negotiating to join the group.

The Digital Millennium Copyright Act and the TPP

The Digital Millennium Copyright Act, or the DMCA, criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. In addition, the DMCA heightens the penalties for copyright infringement on the Internet but does provide a safe harbor for internet service providers within the Online Copyright Limitation Liability Act (OCILLA). The Act exempts internet service providers from copyright infringement liability in an effort to strike the balance between the competing interests of copyright owners and digital users. Under OCILLA, if an internet service provider is served a takedown notice, they are obliged to comply, but will not be subject to copyright infringement liability if they meet certain exceptions.

In the U.S., the take-down notice is immediate. Once a notice is served, the ISP is obliged to take down the offending content immediately, without conducting any type of investigation as to whether that’s true. Per the TPP’s current framework, that’s precisely how internet service providers and digital intermediaries will have to respond to notices of potential copyright infringement, and the requirement has proven to be troubling for many member states whose current framework has a much more rigorous screening process.

The TPP currently provides language that very closely resembles the U.S.’s DMCA safe harbor obligations to remove infringing content once a DMCA safe harbor take-down notice is filed, which many foreign states have found to be deeply problematic when addressing copyright infringement. In Chile, for example, a court order is required before a take-down notice can be properly filed and honored. In Japan, an independent body containing representatives of both alleged copyright holders would review take-down claims before actually going through with them.

Here’s where it gets tricky for artists. On the one hand, DMCA safe harbor take-down notices in the U.S. have functioned as a means of protection for artists who find themselves the victims of copyright infringement. However, it’s also proven wildly ineffective, since those accused of the infringement can simply appeal the take-down notice and have their content back up in a matter of days. At that point, an artist has to take their alleged infringer to court, a long, complicated and costly process that isn’t always a viable option for most artists.

What’s interesting about the setup Japan and Chile have is that it relies on an independent governing authority to determine whether or not infringement has occurred, which makes the question one with a definitive answer. In the current TPP framework, ISPs can effectively remove themselves from the equation, which means the burden falls on the artist to prove that copyright infringement does exist and a take-down notice was, in fact, proper. Many argue that the TPP’s current framework allows large companies with even larger profits to free themselves from any blame or responsibility when they’re exactly the deep-pocketed type of party that could actually limit and prevent future copyright infringement.

While the TPP effectively expands copyright law and the Digital Millennium Copyright Act, we’re unsure that the measure will have a positive effect on the global arts community – what do you think?

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

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