USTR's Surprise Turnaround: Now Advocating Limitations & Exceptions To Copyright

Surprises

from the who-are-you-and-what-have-you-done-with-ron-kirk? dept

Tue, Jul 3rd 2012 1:37pm — Mike Masnick

One of the big complaints about ACTA and SOPA and the like was the extreme maximalist positions that they entailed, without recognizing the very important exceptions and limitations that can often be even more important in encouraging culture and creativity. The version of the US's recommendations on the IP chapter of the Trans Pacific Partnership (TPP) agreement that leaked last year, suggested a similar maximalist approach: all enforcement, all the time, no concern about limitations or exceptions.

In a somewhat surprising turnaround, the USTR has now admitted that it is actively embracing limitations and exceptions in its latest proposal around IP for TPP:

For the first time in any U.S. trade agreement, the United States is proposing a new provision, consistent with the internationally-recognized “3-step test," that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.

Given the USTR's general lack of transparency and intellectually insulting attitude towards anyone who questions TPP and ACTA transparency, I don't trust the USTR on its commitment to this... but I have been hearing from multiple sources that the protests against SOPA and ACTA have had a big impact on the administration's thinking on intellectual property issues... and that the MPAA/RIAA folks are not at all happy about the latest version of the USTR's IP chapter. There have also been multiple assurances that the USTR will fight strongly to make sure that this language on exceptions remains in the agreement, even if some of its "advisers" from the legacy content industry don't like it. That suggests that maybe, just maybe, some voices of reason have gotten through to the USTR.

All that said, this requires very close scrutiny. And, of course, there's all sorts of things that can be hidden in the language -- which, of course, the USTR still has not revealed. In the interest of openness and making sure that these provisions actually are in the best interest of the public, it would be nice to actually have the USTR live up to its transparency commitments and publish the specific text that relates to these limitations and exceptions. On top of that, the so-called "3-step test" that the USTR mentions is somewhat limited (and a bit antiquated) in these modern times with an internet where things like mashups and remixing occur on a daily basis. It would obviously be a lot nicer if we actually moved forward with our limitations and exceptions to copyright law to bring them into the 21st century -- but having the USTR actually acknowledge such limitations and exceptions as an important part of the IP chapter on TPP is a huge (almost monumental) step forward.

Either way -- and I know that some people will never trust anything from the USTR considering how many bridges it has burned -- the USTR deserves at least some kudos for taking this surprising step, and hopefully it continues to recognize that this is an important issue. With further exploration, and further acknowledgement that the MPAA/RIAA's view of thew world is not the only one, perhaps the USTR can recognize that setting up a maximalist/protectionist plan does not help the US, the economy or creativity. Enabling a more functional system, including knocking down the barriers that copyright sometimes sets up, is a much more effective path.

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Filed Under: acta, fair use, sopa, tpp, transparency, ustr
Companies: mpaa, riaa

49 Comments

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Anonymous Coward, 3 Jul 2012 @ 1:48pm

Not sure if hiding something, or serious...
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Anonymous Coward, 3 Jul 2012 @ 1:49pm

These folks are so tricky, there isn't any telling what they are really up to. As for defying the "creative industry" and loosening IP laws, well, I'll believe it when i see it.
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:Lobo Santo (profile), 3 Jul 2012 @ 1:50pm

Their time has passed.
(Good news everybody!)

Every time I hear about the USTR and similar, I cannot help but think they should be replaced with something akin to reddit--a true discussion of those involved. Where the group can hammer out their decisions, where that which everybody finds important will find it's way to the top.

The USTR is past it's expiration date.
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MrWilson, 3 Jul 2012 @ 1:53pm

Re: Their time has passed.
Unfortunately, it's being kept from the public domain where it rightfully belongs.
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Cory of PC (profile), 3 Jul 2012 @ 1:54pm

Sooo... during the time that they were saying that SOPA was good... they were in fear? I'm kinda lost on this. They actually fear us, knowing that we could lash at them again if this gets close to passing, while hiding behind their PRs and lawyers and acting brave, spitting out lies at the same time? Is that what's going on?

If somehow they tricked us in believing this, then can't say I warn ya. Otherwise I'll proceed with caution... extreme caution...
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quawonk, 3 Jul 2012 @ 1:57pm

and that the MPAA/RIAA folks are not at all happy about the latest version of the USTR's IP chapter.

Well then, there must be at least something in it that benefits the public. But more likely, they're not happy because it doesn't give them absolute control of the Internet which is what they would love.
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Jacob Blaustein, 3 Jul 2012 @ 1:59pm

Who, what how when why, I don't even know...
I am shocked at this turnaround. Still we must keep pushing at the USTR to make sure they follow through with this promise and not try anything funny.
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Anonymous Howard, 3 Jul 2012 @ 2:00pm

I'll believe it when I see it.
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Anonymous Howard, 3 Jul 2012 @ 2:02pm

Re:
I rolled right by the comments and see you already said what I posted, verbatim. Have an insightful.
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Anonymous Coward, 3 Jul 2012 @ 2:03pm

didn't see any mention of a relaxing attitude towards copyright and file sharing or of the 6 strikes law that starts very soon. also wouldn't be surprised if this is a way of distracting people, then catch everyone with their guard down. the old 'sprat to catch a mackerel' ploy. there is no way that Kirk is going to go along with this, especially after Issa was turned down from attending a meeting and Canada and Mexico basically told 'you can join but not attend and must agree to everything even though you dont know what it is'.
you're right Mike. not trustworthy enough.
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khory, 3 Jul 2012 @ 2:05pm

It's a trap!
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Prashanth (profile), 3 Jul 2012 @ 2:05pm

Exceptions and limitations
Cynically, I believe that the "exceptions" are actually going to be for the beneficiaries of copyright, while the "limitations" are going to be further imposed on the public.
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Anonymous Coward, 3 Jul 2012 @ 2:13pm

I've got to agree with #11 its a trap. They'll go around the exceptions and limitations with that actors image copyright thing to ensure that parody is not included in exceptions/limitations.
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Al Bert (profile), 3 Jul 2012 @ 2:18pm

strange
While this is indeed a surprising step, i'm not quite ready to leap in joy at the mere chance that positive change is in hand quite yet.

So long as we can't actually know the truth, being pacified by the words of a distrusted person seems to be a poor strategy. Hopefully the unique nature of this development will prompt further discussion in the near future.

It'd be awesome if anything did actually piss off the MPAA anyway.
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Anonymous Coward, 3 Jul 2012 @ 2:23pm

It's that damn well again
Now it's the USTR poisoning the well. The MPAA/RIAA have to drink out of that well dammit! Stop poisoning it!
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Anonymous Coward, 3 Jul 2012 @ 2:24pm

In the words of the great Admiral Ackbar...

IT'S A TRAP!
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That One Guy (profile), 3 Jul 2012 @ 2:26pm

Re: Exceptions and limitations
At this point that's not cynicism, but experience talking.

If, like in this example, you've got a group that's been working exclusively for the private interests, and all of a sudden they say that they're really interested in helping out the public, you'd have to be an utter fool to believe them without some solid proof.

After all, words mean nothing, without the matching actions to back them up.
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[citation needed or GTFO], 3 Jul 2012 @ 2:27pm

To paraphrase the former pro-SOPA side...
"It's a blatant attempt at misdirection and misinformation."

What they state publicly and what's actually going on are two different entities. Just because they SAY its in there, doesn't mean that they don't have ways to get around it. They said they needed SOPA and PIPA to take down piracy, yet it wasn't necessary when they took down Megaupload or O'Dwyer.

In other words, is TPP even necessary?
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Anonymous Coward, 3 Jul 2012 @ 2:29pm

Re:
They could be doing what they did in Canada.

Offer all these "fair use" clauses but then later have a clause stating that "digital locks" can block them.

I'm sure there is a way they could do the same with they. Offer you everything, including the unicorn that shoots rainbows out of it's ass, but then have something in the fineprint that states that the IP owner can decide to block all of the above mentioned statements. Of course they'd focus on mentioning the Unicorn in all their PR statements while skipping the "small" stuff.
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Anonymous Coward, 3 Jul 2012 @ 2:33pm

Re: Re: Their time has passed.
You mean you want to force the USTR to mingle with the common public? Hell no! You will build it a private chariot of pure gold that is protected by overzealous police with pepper-spray, so that the USTR can continue to represent the common citizen.
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Anonymous Coward, 3 Jul 2012 @ 2:36pm

Re:
You think they'd be satisfied only having absolute control of the Internet. Hahaha, funny man. They will settle for no less then absolute power over the entire universe, and the parallel dimensions. Even then, I doubt they'd be satisfied.

BUT PIRACY IN THE 6th DIMENSION!
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Anonymous Coward, 3 Jul 2012 @ 2:37pm

We remember the Uruguay Round
We remember the Uruguay Round.

Golan v Holder (2012)

To perfect U.S. implementation of Berne, and as part of our response to the Uruguay Round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U.S. works. Congress did so in � 514 of the Uruguay Round Agreements Act (URAA)�.�.�.�.

Petitioners include orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works � 514 removed from the public domain. They maintain that the Constitution's Copyright and Patent Clause, Art. I, � 8, cl. 8, and First Amendment both decree the invalidity of � 514.�.�.�.
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mikey4001, 3 Jul 2012 @ 3:01pm

Re: Re:
Exactly. You can exercise legal fair use as long as the content is not "protected".

To obtain a list of non-protected content, please send US $1 Million cash and a self addressed stamped envelope to:
MAFIAA Headquarters
Suite 66b
Spider Skull Island, 86753-09
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Anonymous Coward, 3 Jul 2012 @ 3:02pm

Re: Who, what how when why, I don't even know...
I am shocked at this turnaround.

Turnaround?

Techdirt, Fri, Jun 29th 2012, �Countries That Don't Put In Place Copyright Regimes The US Likes May Be Deemed 'Cybersecurity Concerns'

Or trick?
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Anonymous Coward, 3 Jul 2012 @ 3:05pm

Re:
I'll believe it when I see it.

Techdirt, Thu, Jun 28th 2012, �US Copyright Office, MPAA Celebrate Handing Hollywood Stars Their Own Special Copyright Monopoly Powers�

Has the administration's position really changed?
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TaCktiX (profile), 3 Jul 2012 @ 3:05pm

Re: Re: Re: Their time has passed.
Why was I reminded of that one scene from the Hunger Games (book, not movie)?
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Anonymous Coward, 3 Jul 2012 @ 3:07pm

Re: To paraphrase the former pro-SOPA side...
What they state publicly and what's actually going on are two different entities.

Is the Obama administration still pushing ACTA?
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Anonymous Coward, 3 Jul 2012 @ 3:11pm

Re: Re: Exceptions and limitations
...you'd have to be an utter fool...

With all respect due Mr Kirk�I do not believe him.
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The Mighty Buzzard (profile), 3 Jul 2012 @ 3:24pm

Re: Re: Re:
And they'll send you back a blank sheet of paper.
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Almost Anonymous (profile), 3 Jul 2012 @ 3:30pm

Re: Re: Re: Re:
Damn, you're so cynical... but also so right.
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Hephaestus (profile), 3 Jul 2012 @ 3:40pm

Re: Re: Who, what how when why, I don't even know...
Its a trick, they will put a line in there to the effect of ...

"these shall apply to Professional writers, directors, and publishers as defined in section 103.6.3"

with section 103.6.3 being defined as, a Professional employed by a corporation ... blah blah blah... owned an operated by people who meet our standards.
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Hephaestus (profile), 3 Jul 2012 @ 3:43pm

Re: Re: Re: Who, what how when why, I don't even know...
and the three point test will be impossible to pass, and only administered in a private court they control, where you are responsible for all fee's.
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Hephaestus (profile), 3 Jul 2012 @ 3:47pm

Re: To paraphrase the former pro-SOPA side...
"In other words, is TPP even necessary?"

It is necessary to maintain a strange hold on IP world wide, create courts run by corporations, and maintain the current monopolies. The problem is when a system like the one they seem to be headed toward fails it crashes everything.
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Anonymous Coward, 3 Jul 2012 @ 3:57pm

Given the past history of the USTR and the way it's handled IP, not only is it not wise to trust anything coming from the mouth of it but it is likely to be a snake in the wood pile somewhere.

This sounds more like someone has read from the book to them that either they start acting like copyright is for something more than the vested interests or these trade treaties pushing IP protections comes to an end.

I can not help but think that given the past track record of this group of thieves, that there is anything to trust prior to seeing it in black and white.

It is likely that it isn't that SOPA and ATCA didn't pass but more likely they have been told that anything similar coming down the pipes has no chance of passing anywhere but the US.
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LDoBe (profile), 3 Jul 2012 @ 3:58pm

Re:
Should a secretive organization be praised for making an unaccountable promise they know will make their critics happy?

The USTR can say anything he wants without consequence in order to make the public happy. It's that simple.

Why should we trust a single word coming from Ron Kirk when he refuses to tell even the congress what he's doing?

This "Turnaround" is totally meaningless until such a time as the USTR both enacts transparency and shows they know what it means.
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Anonymous Coward, 3 Jul 2012 @ 6:24pm

Are we suppose to forget now, like good little citizens

I still do not fucking trust them...........this is not something minor that they've been disscussing, untill they realise that, and untill the laws that need to come first before bills like these pass, then continue to expect the big old fuk-youuu
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Anonymous Coward, 3 Jul 2012 @ 6:49pm

Joint Statement of Civil Society Groups on U.S. TPP Copyright Proposal
Joint Statement of Civil Society Groups on U.S. TPP Copyright Proposal, July 3, 2012

The Office of the U.S. Trade Representative announced a new copyright proposal today for the Trans-Pacific Partnership (TPP) negotiations. One part of the proposal is a "3-step test" that may restrict copyright exceptions like fair use.

The USTR says that its proposal - the text of which is still secret - will include provisions that may mimic Article 13 of the WTO TRIPS accord, which says:

Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

We are concerned that, depending on the actual text and its scope and interpretation, the provision in the TPP will restrict fair use and other copyright exceptions and limitations crucial for the progress and access of culture, science, education, and innovation.

In a 2000 dispute involving an exception to copyright for the United States, the WTO has defined the 3-step test narrowly and restrictively, making it difficult to justify a statutory limitation or exception to the exclusive rights of copyright, in the areas where the WTO says the test applies.

[...more...]

(Emphasis in original. Hyperlinks omitted.)
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Michael, 3 Jul 2012 @ 7:29pm

I can only reiterate what's been said, that these people have done nothing to earn our trust and confidence. Are these not the same people going around claiming that the TPP 'negotiations' are being done with "unprecedented transparency"?

In any event, what happens if every tech company, website operator, ISP provider, et al. does not comply in protest of the TPP being pushed through without public consent? What can they do?
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jj (profile), 3 Jul 2012 @ 7:29pm

The USTR works for the Prez, it's Obama's call
Very simply, folks, the Office of the USTR is not a sinister, secret agency; the USTR and his staff are a part of the Executive Office of the President. President Obama is his boss, and that's that. Since the Executive and the Legislative branches have separate powers, Congress can ask, but doesn't have the right to get the answers it wants (at least without some fancy new lawmaking).

We should pressure PRESIDENT OBAMA this election season, and have him direct the USTR to be more accomodating to the People (or at least their Representatives) when they ask what's going on. ASK Obama why he's being so, well, REPUBLICAN about this whole thing by his inaction. Make the President stand for Netizens' right to know.
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Anonymous Coward, 3 Jul 2012 @ 7:40pm

Re: Re: Re: Re: Their time has passed.
Because the book was a whole lot better at describing the chariot to you, since it had all the time in the world, rather than relying on your eyes to spot all the details during the movie when the focus of the scene wasn't the chariots detail but what the characters were doing with the chariot, since its a movie and they gotta keep the plot moving along and can't stop to play a "making of the X" documentary for each scene.
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Big Copyright's Puppeteer, 3 Jul 2012 @ 8:01pm

the protests against SOPA and ACTA have had a big impact on the administration's thinking on intellectual property issues... and that the MPAA/RIAA folks are not at all happy about the latest version of the USTR's IP chapter.

Until there is public drafts of the text, this is all just lies and misdirection designed to take heat off the negotiations from the public. It's about as honest as saying the sun rises in the west.

If anyone thinks people with this much money at stake can't and won't hire some dramatists to tell them how to put on a farce performance of pretending to take the public's concerns seriously, all the while still doing whatever they please behind closed doors at the public's expense, then that person is a fool and contributor to the problem. Hell, I don't even need to pay anyone to tell me that, just have some "sources" (people I pay to talk to the public) tell people like Tech Dirt that Hollywood is "SUPER MAD!!!" and hope they believe it and back down. It'd save me the trouble of hiring an actor trainer to coach Chris Dodd to pretend hes upset about this publicly, but if the cheap-and-easy plan of sources "close to the matter" talking to the public doesn't work out, then we can coach Dodd and the others in a little acting. Easy peesy, so long as the public and groups representing their rights have no access to the ACTUAL text of TPP and especially no input, we can tell them whatever we want, act however we want, do whatever we want, just so long as we put on a public performance that misdirects the attention away from the truth.

Not saying I didn't see how Masnick specifically says he doesn't trust these people, but that doesn't change the fact that this _WILL_ work on others that're more gullible
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G Thompson (profile), 3 Jul 2012 @ 10:08pm

Ok I think the most pertinent statement from anything the USTR has stated about this is this sentence

"These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence."

This means a few things that especially come to mind when looking at what TPP actually is. It's a trade agreement which in reality is a treaty between different sovereign states.

This means that being a treaty the USA either has to change it's own laws to reflect the treaty or make the treaty ambiguous enough to be tied up in doublespeak or make the treaty conform to, as far as possible, the laws of the major nations it involves (or a common denominator of laws so to speak).

Due to the ACTA and SOPA outcry I think the ability to do the doublespeak has been pretty well diminished for all actors, not the USTR, but they need to save face with the other sovereign powers own citizens outcry (political fear is a wonderful thing).

Therefore they have the other two options. And since these 'exceptions' appear in both [the USA's] law and jurisprudence They basically have to Cover there legal bases in the USA or have all your courts and attorneys declare that those exceptions are mandatory no matter what.

I think the USTR is just clamouring to appear like a 'nice' organisation when in reality they are just Covering their won asses and being a bit pro-active on future potential legal disputes.
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Chargone (profile), 4 Jul 2012 @ 8:00am

Re: Re: Re: Exceptions and limitations
this is one of those '100% of 0' things, isn't it?
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big deal, 4 Jul 2012 @ 10:45am

Re: Re:
@21 no can do. That's Monsanto's throne.
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Anonymous Coward, 4 Jul 2012 @ 10:49am

Outside of the GAO, I believe next to nothing from any branch of the federal government at this point that is not clearly in favor of the major corporations.
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Anonymous Coward, 4 Jul 2012 @ 10:51am

Re: Re:
I agree, and Ron Kirk has already lied on several occasions. This is just a political stunt and we should only further our efforts to stop this nonsense.
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Anonymous Coward, 5 Jul 2012 @ 8:20am

Re: Re:
Somehow I misread that and thought a great new movie was coming out....

"BUTTAROO BANZAII IN THE 6TH DIMENSION".... He crossed crossed the 8th dimension (trademark) and now is back to save us in the 6th dimension (copyright)...

Nah, it would never fly...
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PatLynch_Biomed (profile), 5 Jul 2012 @ 8:55am

Copyright problems for Medical Device Repairers
Medical Equipment Repairers have been fighting a long war with manufacturers who will not release service manuals, error codes, passwords and other needed information so that they can protect their very lucrative service revenues (up to $1000.00 per hour). They often cite FDA limitations (Bulls---!) and copyright laws. We need a medical device service literature exemption.
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Renee Marie Jones, 8 Jul 2012 @ 11:30am

three-part test
The "three-part test" that the USTR is "now" advocating is no limit whatsoever. I am astonished that the author of this article is so ignorant as to what this test is. This is the same test that the WTO has currently interpreted as making illegal exceptions to copyrights currently in US LAW! According to the WTO, using this same three-part test, the US Congress is obligated to repeal the copyright exemption that allows small shopkeepers to play a radio or television in their store. The three-part-test does nothing to protect the public, it only serves to protect big media.
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