The Trans Pacific Partnership Agreement: What could it mean for Authors?

POSTED BY Rick Shera
11 April 2014

posted in l@w.geek.nz | TPPA | Intellectual Property | Copyright | Digital Publishing

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The Trans Pacific Partnership Agreement (TPP) is a multilateral treaty being negotiated between Australia, Brunei, Chile, Canada, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam.  Negotiations started in 2010 and were scheduled to conclude in 2012 and then in 2013.  That didn’t happen.

Although there have been leaks at various stages, the negotiation text of the treaty is kept confidential to the parties, so it is difficult to know how close we are to reaching agreement.  Indications are that there are major sticking points in several areas and, with the US election due this year, it is possible that it will not be finished anytime soon.  There are also vociferous opponents of TPP or specific parts of it, in particular from an anti-globalisation anti-Big Corporate perspective or those with concerns about intellectual property overreach.

TPP is described as a free trade agreement, but it is much more than that.  It is expected to cover trade in goods, tariff reduction, rules of origin, trade remedies and international dispute resolution, sanitary and phytosanitary measures, technical barriers to trade, trade in services, intellectual property, government procurement and competition policy. Its promoters describe it as a comprehensive, gold standard, 21st Century, future proofed agreement.  Unlike many international treaties, it is very prescriptive, giving rise to an expected 1,000+ pages of legal text divided into chapters dealing with each topic, each of which is negotiated by separate teams from each country.  So for example, while our Ministry of Foreign Affairs and Trade has overall responsibility, the intellectual property chapter is negotiated by the IP Policy Group from the Ministry of Business Innovation and Employment.  Trade-offs in the negotiation may therefore occur within chapters or larger ones may eventuate when bottom line issues that have bubbled up from each chapter negotiation are played off against each other by Ministers in the final rounds.

For the intellectual property chapter, which has the greatest potential impact on authors, you can see therefore there are many opportunities for our IP settings to be changed as negotiation moves within the chapter and within the agreement as a whole.  Some areas to look out for are:

Extension of the term of copyright.  In New Zealand, copyright subsists in a book for the life of the author plus 50 years.  Typically, when an author enters into a publishing contract, that copyright is assigned or licensed to the publisher for that full term, although more enlightened publishers are willing to discuss automatic reversions or shorter terms.  The proposal in TPP is for the copyright term to be brought into line with the US at life plus 70 years, which is what the US extended it to a while back when Mickey Mouse was about to fall out of copyright protection.  Most people, including our officials negotiating the TPP, consider this extension unwarranted.  The modern day rationale for copyright – encouraging creativity and the spread of knowledge by granting creators a limited monopoly - is not well serve d by an extension when we know that a vanishingly small proportion of books will still be being sold even 10 years after first publication.  In fact, as a study last year showed, despite more books being written nowadays, there are more books available on Amazon from the 19th and early 20th century than there are from the copyright protected later 20th Century and the 21st.

Stronger penalties for infringement. If you’re a fan of locking up copyright tighter than it is at the moment, then you’ll also like the proposals to criminalise copyright infringement and to impose US style statutory damages which have seen small scale private infringement being hit with million dollar lawsuits.

Parallel imports. An early proposal by the US to allow copyright owners to veto parallel imports would be met with horror by most New Zealanders.  It is also hard to see how allowing a publisher to block import of legitimately sourced books from another country into the US serves the interests of the author (and, anyway, the US Supreme Court agreed that that was a bad idea in its Kirtsaeng decision last year).

ISP involvement. Watch out also for changes to the way in which internet service providers address copyright infringement and clarification of their liability for that infringement.  We all know that the infringing file sharing regime in New Zealand has been an abject failure for all involved and this is an area being struggled with everywhere.  The US itself is currently reviewing the Digital Millennium Copyright Act (DMCA), which is the law that gives ISPs safe harbour if they operate a notice and takedown regime.  Google currently receives about 28 million such notices per month.  The so called "6 strikes” copyright notice system operated voluntarily by the main ISPs in the US is just coming into full use too.  The outcomes of the DMCA review and statistics on whether 6 strikes is working to reduce copyright infringement will inevitably influence the US position in the TPP negotiations.

Overall, TPP has the potential to make dramatic changes to our copyright law, so it’s definitely a space worth watching.


This article was first published in Issue 297 April/May/June of The Author published by the New Zealand Society of Authors.


Image "Throes of Creation" by Leonid Pasternak, courtesy of Wikipedia

POSTED BY Rick Shera
11 April 2014

posted in l@w.geek.nzTPPAIntellectual PropertyCopyrightDigital Publishing

VIEWED 9925 TIMES

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