Trans Pacific Partnership needs a level playing field

The intellectual property chapter of the Trans Pacific Partnership Agreement is one of the most contentious. That is not surprising. The wording proposed by the US would require dramatic changes to the intellectual property laws of several negotiating countries, including those of New Zealand.

We haven't seen the text of the US proposals for almost 3 years since that text was leaked in early 2011 but we know that not much progress has been made on this chapter. Failure to agree it and other contentious issues has the potential to derail the ambitious plan to have the agreement completed in 2012 2013.

Two of the most dramatic US proposals for the intellectual property chapter were (and presumably still are):

• Increasing the term of copyright in all TPP countries to align with that of the US. This would increase the basic term of copyright in New Zealand from life of author plus 50 years to life plus 70 years.
• Allowing intellectual property owners to veto parallel imports. New Zealand currently allows parallel imports.
  

But, as in a rugby game, it's important not only to look at what is happening on the ball but also what is taking place in back play. You don't award a penalty try against one team if the other team only got there by making a forward pass. Context is important. So, let's place the above two proposals in context.

I don't agree with extending copyright terms in the first place but, if I did, or if New Zealand was getting something valuable in return in TPP, you could argue that it's fair we should align our copyright term with that of the US. However, one consequence of that extended 70 year copyright term would be that the estates of early stage creators, who can be economically coerced into assigning their rights to publishers for the term of copyright, lose out on another 20 years of potential rights income that would have been theirs alone. Don't get me wrong. I'm not one who would throw the publishing baby out with the bath water, but some of the traditional deals where young creators assign copyright under standard publishing contracts in various industries are just blatantly unfair.

Recognising this, when the US itself extended its copyright terms in 1976, it also provided that creators could terminate those assignments 35 years after they were granted. On termination, they get their original exclusive copyright back and the publisher no longer has that right. It's a termination right that overrides all contractual terms. This hasn't been on the radar screen much ... until now, as the 35 year period starts to kick in for the first of those works and now famous creators move to have very valuable copyright reassigned back to them. That's an important safeguard right there but it's one that New Zealand does not have. So, if we were to accept longer copyright terms, we'd also include something like this to level the playing field with the US right?

Parallel importing has been a boon for New Zealand consumers. It has curtailed (but not completely avoided) the bad old days of New Zealanders paying far more for the same products than residents of other countries. Giving multi-national intellectual property owners the right to veto parallel imports would return us to the situation where they can impose arbitrarily different prices in different countries and, inevitably, extract higher prices for the same products in New Zealand. But, in the US, the Supreme Court has only recently ruled that the US must accept parallel imports of text books in a ruling that has wide application to all US imports. One would hope therefore, in the face of the highest US Court's approval of parallel importation, that this proposal has been taken off the playing field altogether.

And then of course there is fair use - the US Constitution inspired safety valve which defends against over-zealous copyright enforcement, provided the alleged infringing use is "fair" by reference to the purpose and character of the use, the nature of the work, the amount and substantiality of the portion used and the effect on the market for or value of the work. We don't have an overarching fair use exception in our Copyright Act, so we don't have that safety valve.

There are plenty of arguments against penalising New Zealand with the US TPP intellectual property proposals. But, if we are to accept those penalties, then the current off the ball issues need to be addressed so that at least we end up on a level playing field.


Image courtesy of Evelyn Simak [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons