Why Does The TPP Repeatedly Require Stronger Copyright, But When It Comes To Public Rights... Makes It Voluntary?

from the what's-up-with-that? dept

Thu, Aug 6th 2015 1:38pm — Mike Masnick

We've already written a few stories about the newly leaked IP chapter of the Trans Pacific Partnership (TPP) agreement, and how the US is pushing back against any attempt to punish abusers or to support the public domain. But in going through the documents, another key fact strikes me. Throughout the document it's designed to absolutely require strict copyright laws and enforcement. But when it gets to the public's rights, the so-called "limitations and exceptions," the agreement tosses up a big fat "meh, that one's voluntary."

We've already pointed out how ridiculous it is to refer to things like fair use as a "limitation and exception" to copyright, when it should be the public's rights -- and copyright restrictions are, by their very nature, a limitation and exception on those natural rights. But it's even worse in the TPP. As you may recall, the USTR announced, with great fanfare back in 2012, that "for the first time" it was moving to include such "limitations and exceptions" in the TPP. The USTR thought that this would appease people who had been complaining about the entirely one-sided pro-copyright extremist position that it had been pushing for decades. Of course, when the details came out it showed that the USTR was really proposing a limit on fair use by proposing a rule that would act as a ceiling for the kind of fair use-like protections for the public that would be allowed.

Now, with the latest leak, there's something else that's noteworthy. Here's the text of the "limitations and exceptions" clause in the copyright section:

Article.GG.Y {Limitations and Exceptions}

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16.1, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.

Notice the text I bolded: "shall endeavour." In other words, "well, you can try for it, but you don't need to do it." Now, look at basically all of the other text and it's straight up "shall." No "shall endeavour" for everything else. Everything else is required. Only the stuff about the public's rights lets countries not do it so long as they claim they tried. Here, just for comparison's sake, are just a few of the other "shall's":

Article QQ.G.1: {Copyright and Related Rights/Right of Reproduction}

Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms in any manner or form, including in electronic form.

And...

each Party shall provide to authors the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

And...

Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the making available of the original and copies of their works, performances, and phonograms through sale or other transfer of ownership.

And...

Each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the performer or producer is also required.

Etc. etc. By my count, the copyright section includes thirteen "shall provide" and just the one measly "shall endeavour." And if you add in the enforcement section you get another thirty eight "shall provide" and just a single "shall endeavour" buried in a footnote unrelated to the key points in the document.

So, for those of you playing along at home, the message being sent by the TPP is pretty damn clear: when it comes to ratcheting up copyright and setting the ground rules for enforcement everything is required and every country must take part. Yet, when it comes to protecting the rights of the public and making sure copyright is more balanced to take into account the public... well, then it's optional.

I guess that's what happens when the public is not allowed a seat at the table, but the industry representatives get full time access to the document and the negotiators.

Section G Copyright Related Rights TPP 11May2015 (PDF)Section G Copyright Related Rights TPP 11May2015 (Text)

Section H 1 11 of Enforcement TPP IPChapter 11May2015 (PDF)Section H 1 11 of Enforcement TPP IPChapter 11May2015 (Text)

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Filed Under: copyright, exceptions, fair use, limitations and exceptions, public rights, tpp, ustr

30 Comments

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Anonymous Coward, 6 Aug 2015 @ 1:49pm

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system,

This is so that the politicians can claim that they working to protect the public's rights, and explain away the lack of progress as being due to having to deal with more pressing issues; like ensuring that campaign contributions still come in from that maximalists.
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That One Guy (profile), 6 Aug 2015 @ 1:59pm

Do you even need to ask?
It's simple really, the thing is being written by private industry interests, who have absolutely zero care for the public and it's rights, and the agreement is entirely about increasing the 'rights' of private companies, often at the cost of the public.

The only reason they include any mention of the public at all is so they can lie and claim that look, it absolutely does mention the public, and encourages the various governments to 'strike a careful balance', while they completely ignore that the parts that aren't negotiable utterly undermine any 'balance'.
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Anonymous Coward, 6 Aug 2015 @ 2:02pm

Re:
Here in the Merica, we have already proven that it's more important for companies to sue for protections, than save millions of lives. Just look at Al Gore comments during the aids crisis in S. Africa: Guardian link
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Anonymous Coward, 6 Aug 2015 @ 2:03pm

To anyone naive enough to believe IP laws are about the artists; I got a bridge on the moon to sell you.
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David, 6 Aug 2015 @ 2:05pm

Seriously?
Take out "endeavor" and you arrive at "Each party shall achieve an appropriate balance ..." which is a prophesy rather than a prescription.

The main problem here is not the leading phrase but rather that the objective here is cast into such subjective terms that it is quite ill-defined what each party shall endeavor to achieve. "appropriate balance" can mean pretty much whatever one wants it to mean, and the subsequent qualifications/examples are so narrow that they don't really have an impact on the bottom line of the big corporations.
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Anonymous Coward, 6 Aug 2015 @ 2:07pm

Oligarchy
Like... nothing new here folks move along.

In the realm of politics and business... ANYTHING can be justified with their super fuzzy logic.

The Emperor has been wearing his new cloths for quite a long time!
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Mattmon (profile), 6 Aug 2015 @ 2:08pm

Each party shall endeavor to pass the TPP.
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Sheogorath (profile), 6 Aug 2015 @ 2:17pm

You're right, Mike. If anything, copyright is a limitation and exception to the rights of the public. :)
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CharlieBrown, 6 Aug 2015 @ 2:23pm

Who Is The Author?
The number of times on movies and TV shows I have seen it say "[Corporation name] is the author of this work for the purposes of the Berne Convention". So I assume they shall also be the author for the purpose of the Trans Pacific Partnership?
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limbodog (profile), 6 Aug 2015 @ 2:28pm

Why indeed?
The subject line of this article is what we call "Socratic Irony"
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This comment has been flagged by the community. Click here to show it

Anonymous Coward, 6 Aug 2015 @ 2:34pm

Nobody hates the rights of authors more than Mike Maznick (misspelled since his vanity filter doesn't let people use his last name).
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Anonymous Coward, 6 Aug 2015 @ 3:01pm

Re:
You keep on convincing me that IP should be abolished because you make it out to be about the artists (really, the distributors) when it should only be about the public.
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Uriel-238 (profile), 6 Aug 2015 @ 4:19pm

The rights of thenauthors
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Uriel-238 (profile), 6 Aug 2015 @ 4:30pm

The rights of the authors
You mean the rights of the publishing houses?

With few notable exceptions, most authors, artists, talent or developers get screwed by the current IP system.
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Anonymous Coward, 6 Aug 2015 @ 4:38pm

Democracy
"I guess that's what happens when the public is not allowed a seat at the table, but the industry representatives get full time access to the document and the negotiators."

I'm sorry to say this but if you honestly think that the public "is not allowed a seat at the table" while your politicians discuss that agreement then you do not live in a democracy. Your politicians are the public lobbyists or at least in theory they should be and they should be that "seat at the table". If they can not uphold to that standard then they are no doing what they are supposed to be doing and in my opinion they should be replaced by people who listen to, and stand, talk, and vote for the people.
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Uriel-238 (profile), 6 Aug 2015 @ 5:02pm

Re: Democracy
Um...no public lobbyists were invited to that party.

Am I the one to break it to you?

Not only is the US not a democracy, but it hasn't been one for about half a century at least. Certainly not after Reagan's efforts to open Washington up to PACs, which was probably the last nail in the coffin necessary to seal it shut.

The United States has been behaving like a corporate oligarchy for a very long time.

You were probably miss-educated by the public school system, which still pushes the notion that the US is run by the people.

If that were the case regarding the TPP, it wouldn't be a secret document, but a public one.
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Sheogorath (profile), 6 Aug 2015 @ 5:23pm

Re:
Actually, I'm pretty sure that Mike Masnick supports my rights as a writer just as much as he supports my right to enjoy our shared culture. It's maximalists he has a beef with, as do I. (Um, what vanity filter?)
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Anonymous Coward, 6 Aug 2015 @ 8:50pm

Shall
"Shall" is an interesting bit of legalese. We use it all the time in our programming contracts. It implies a certainty, akin to "will". "The system shall connect to another system." sounds very similar to "The system will connect to another system."

But "shall" is not actually a certainty; it's not a promise. It basically means "We'll do our best, but if it doesn't happen, oh well, too bad, we never said it had to do it in the first place."

But maybe that's intentional, and one or more countries are cleverly leaving some wriggle room so they can claim one or more clauses were never binding and so are not enforceable.
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techflaws (profile), 6 Aug 2015 @ 10:55pm

Re:
Vanity filter? You're off your meds again?

*clicks report for your sheer idiocy*
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Anonymous Coward, 6 Aug 2015 @ 11:59pm

Re: Re:
Gasp! Your post included Mike's last name! It's a conspiracy! A conspiracy, I tell you!

Or maybe antidirt's just being a massive douchebucket again...
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Uriel-238 (profile), 7 Aug 2015 @ 1:56am

It's a flag-for-moderators filter.
I've had some posts that specifically mentioned Masnick get held for moderation before. It makes sense if our more trollish posters engage in ad hominem attacks or name calling with frequency, rather than discussing points.
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Karl (profile), 7 Aug 2015 @ 5:58am

Re: Democracy
I'm sorry to say this but if you honestly think that the public "is not allowed a seat at the table" while your politicians discuss that agreement then you do not live in a democracy.

Well, as it turns out, the actual politicians that we voted for are not allowed to discuss the agreement either. And I believe this isn't limited to the U.S.

On the other hand, corporate interests are allowed to discuss - and often write - the text of TPP.
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John Fenderson (profile), 7 Aug 2015 @ 6:46am

Re: Democracy
"I'm sorry to say this but if you honestly think that the public "is not allowed a seat at the table" while your politicians discuss that agreement then you do not live in a democracy."

Yes, we are very well aware.
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techflaws (profile), 7 Aug 2015 @ 8:24am

Re: It's a flag-for-moderators filter.
Right.

Still, has nothing to do with vanity but of course this jackass knows this
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Anonymous Coward, 7 Aug 2015 @ 9:25am

Copyrights and Patents
Here's why copyright term lengths are bad news.

Imagine for a moment (longer if you need to) that every patent issued since 1935 or so (except those rendered invalid) had a term of life plus 70 years.

(I'll wait while you think about that.)

Now, that is what has happened to copyright.
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Sheogorath (profile), 7 Aug 2015 @ 10:02am

Re: Re: Re:
Oh, my post was held for moderation, but I think that's simply because so many flamers (I won't dignify them with the word 'troll') have used Mike's full name, whether targeting him or not, that Techdirt's been forced to add it to the filters. Of course, because I had something substantive to say rather than just a load of barnyard noises, my comment made it. The fact that Mike's name was added to the filter and not any other is more a sign of the flamers' arrogance in believing/acting like he's the only person who writes articles on this site rather than any vanity on his part; that someone was able to avoid the filter by changing a single letter of the surname proves it.
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Anonymous Coward, 7 Aug 2015 @ 10:20am

Re: Re:
He also believes in their rights to have their vote counted and not just the votes of large corporations that provide politicians with kickbacks in return for IP laws.
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Sheogorath (profile), 7 Aug 2015 @ 5:10pm

Re: Copyrights and Patents
Thanks to evergreening, drugs patents already have a term of life of the company plus seventy years. ;(
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Sheogorath (profile), 7 Aug 2015 @ 9:34pm

Re: Re: Re:
True, but that wasn't the point that was made by the person I was responding to, and thus not one I needed to address.
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Anonymous Coward, 10 Aug 2015 @ 8:40pm

Re: Re: Re: Re:
So basically antidirt abused his binky and had it taken away from him! Classic idiocy.
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