Introduction The Trans-Pacific Partnership seeks to provide for longer and stronger copyright protection for transnational corporations across the Pacific Rim. The agreement builds upon intellectual property agreements – such as the TRIPS Agreement 1994 and the WIPO Internet Treaties 1996. Moreover, the Trans-Pacific Partnership draws inspiration from domestic United States copyright laws – such as the Digital Millennium Copyright Act 1998 and the Sonny Bono Copyright Term Extension Act 1998. Furthermore, the Trans-Pacific Partnership builds upon TRIPS+ bilateral agreements – such as the Australia-United States Free Trade Agreement 2004 and the Singapore-United States Free Trade Agreement. The agreement recycles many of the provisions found in the failed TRIPS++ Agreement, the Trade Agreement 2011. Accordingly, the Trans-Pacific Partnership could be described as a TRIPS++ Agreement. Rather radically, in addition to an extensive intellectual property chapter, the Trans-Pacific Partnership also includes an investor-state dispute settlement regime – like the North American Free Trade Agreement 1994. There has been worry that the Intellectual Property Chapter of the Trans-Pacific Partnership will ‘contribute to, rather than help to control, the increasing fragmentation of international IP lawmaking.’ The Trans-Pacific Partnership has featured a raging debate over copyright law, policy, and practice. The controversy has not necessarily followed the patterns of past copyright controversies over the Stop Online Piracy Act and the Anti-Counterfeiting Trade Agreement 2011. It has been noticeable that the information technologies who protested against past copyright industry proposals have relented in their criticism in the debate over the Partnership. It has been striking that the Obama administration was able to obtain support for the Trans-Pacific Partnership from both copyright content industries in Pacific
documentary producers depend heavily on U.S. copyright law’s concept of “fair use,” or the use of material without authorization of the owner.’ The Recording Industry Association of America (RIAA) was disappointed by the collapse of the Anti-Counterfeiting Trade Agreement. The music industry has sought to promote a similar copyright maximalist agenda in the Trans-Pacific Partnership. Chairman and CEO of the RIAA, Cary Sherman, was delighted by the conclusion of the Pacific Rim trade agreement: We congratulate Ambassador Froman and the other TPP negotiators for reaching an agreement designed, at least in part, to create the legal and enforcement infrastructure to facilitate digital trade. Music is increasingly a global phenomenon and the modern music business derives the vast majority of its revenues from an extensive array of digital platforms. It is critical to the well-being of America’s creative communities and to American competitiveness to eliminate barriers to growth in the digital economy. Neil Turkewitz of the RIAA maintained that the Trans-Pacific Partnership was ‘critical to sustaining America’s creative sector.’ He insisted: ‘While the TPP may not provide a precise roadmap for realizing the potential of Internet commerce, it certainly moves us in the right direction’. There has been disquiet, though, as to whether the trade agreement will privilege the interests of the music industry above those of creative artists. The Computer and Communications Industry Association (CCIA) has supported the Partnership. Its members include a broad section of the information technology industry - including Amazon, eBay, Facebook, Google, Microsoft, Netflix, PayPal, Pinterest, Samsung, TiVo, and Yahoo! The Association spans a wide spectrum of positions in the copyright public policy debate. While computer software companies like Microsoft have been
duration of protection where the benefits to holders are matched by the costs to users’. The Productivity Commission summarizes such work: ‘These studies find that a term of around 25 years enables rights holders to generate revenue comparable to what they would receive in perpetuity (in present value terms), without imposing onerous costs on consumers.’ The Productivity Commission reviewed a variety of studies, which have attempted to estimate the ‘optimal’ duration of copyright protection. The Productivity Commission considers the work of leading law and economics specialists: Landes and Posner (2002) argue a term of around 25 years enables rights holders to generate revenue comparable to what they would receive in perpetuity (in present value terms), without imposing onerous costs on consumers and suggests that a term of around 25 years is sufficient to incentivise creative effort. However, this is only an indicative period because the lower the discount rate used, the greater the term should be, and the authors used a relatively high real discount rate. In addition, any estimate of optimal term duration must make assumptions about the pattern of demand for the works over time — a difficult task. The truly ‘optimal’ period may accordingly be more or less than 25 years after creation but it is completely implausible it could ever be 70 years after death. The Productivity Commission also notes the work of Pollock (2007) who uses an alternative methodology to estimate the optimal length of copyright protection: ‘His work suggests a copyright term around 15 years after creation balances the benefits and costs of the system.’ The Productivity Commission concluded ‘Australia has no unilateral capacity to alter copyright terms, but can negotiate internationally to lower the copyright term.’ Draft Finding 4.1 lamented that ‘Australia’s copyright system has expanded over time, often with no transparent, evidence based policy analysis demonstrating the need for, or quantum of, new rights.’ Draft Finding 4.2 observed: ‘While hard to pinpoint an optimal copyright
proven to only provide limited and narrow exceptions in respect of technological protection measures. Parker Higgins comments: ‘Section 1201 is a draconian and unnecessary restriction on speech and the time has come to set it aside’. He concludes that ‘the future of cultural participation and software-related research depends on it.’ Parker Higgins of the Electronic Frontier Foundation has detailed a number of the other dimensions of technological protection measures. He commented: ‘Some day, your life may depend on the work of a security researcher’. Parker Higgins observed: ‘Whether it’s a simple malfunction in a piece of computerized medical equipment or a malicious compromise of your networked car, it’s critically important that people working in security can find and fix the problem before the worst happens.’ He lamented: ‘Section 1201 means that you can be sued or even jailed if you bypass digital locks on copyrighted works—from DVDs to software in your car—even if you are doing so for an otherwise lawful reason, like security testing.’ Parker Higgins also notes that such measures also impact upon education, creative arts, and remix culture: It gets worse: Section 1201’s speech restrictions also apply to scholars, artists, and activists that are seeking to comment on culture or make it more accessible. The tools to make engaging remixes, annotations, or interactive commentaries are in the hands of more and more people, but the law has created a “gotcha” situation: while using that source material is legal, getting access to it might run afoul of these additional legal hurdles. Parker Higgins noted: ‘When Congress passed Section 1201, the hot-button copyright debates were about the terms under which people could copy and consume music, movies, and books’. He observed that ‘copyright law shouldn’t be casting a legal shadow over activities as basic as popping the hood of your own car, offering commentary on a shared piece of culture
There are some important statements in constitutional cases – like Eldred – about the importance of safety-valve clauses, like the ideas/ expression dichotomy and the defence of fair use, in the doctrine of copyright law. There has been a long tradition of academic writing, which raises concerns about the impact of the Digital Millennium Copyright Act 1998 upon freedom of speech and expression. In this context, it is concerning that the Trans-Pacific Partnership embeds the constitutionally dubious technological protection measures into the agreement. The privacy company, NordVPN, has raised concerns about the impact of the Trans-Pacific Partnership for internet freedom and privacy. Obviously, the company has been worried about how private virtual networks will be treated in such a regime. 6. Electronic Rights Management Information Article 18.69 of the Trans-Pacific Partnership addresses Electronic Rights Management Information (RMI) – sometimes also known as copyright management information. Article 18.69 (1) provides: In order to provide adequate and effective legal remedies to protect RMI: (a) each Party shall provide that any person that, without authority, and knowing, or having reasonable grounds to know, that it would induce, enable, facilitate or conceal an infringement of the copyright or related right of authors, performers or producers of phonograms: (i) knowingly removes or alters any RMI; (ii) knowingly distributes or imports for distribution RMI knowing that the RMI has been altered without authority; or