More Experts Realizing That The TPP Is A Horrible And Dangerous Deal On Copyright

from the fix-it,-ustr dept

While the last round of TPP negotiations didn't lead to a deal, and some are questioning whether the agreement has effectively "stalled out," there's still plenty to be concerned about, and the TPP still has a decent chance of moving forward in the near future. David Post, who has studied copyright law and related issues for many years, has a fascinating article up discussing "some pretty nasty" aspects for copyright law, which are "lurking" in "a dark corner" of the agreement. He focuses on the issue of orphan works, which are works where the owner can't be found. As we've discussed in the past, the entire "problem" of orphan works is really a problem created by the automatic application of copyright, rather than requiring registration ("formalities.") By automatically having copyright cover everything, there is no way to easily track down many copyright holders for the purpose of licensing. The Copyright Office has been struggling for years on how to deal with this issue (never apparently willing to explore the issue of returning to a registration requirement). However, as we noted earlier this year, under the current draft of the TPP, the Copyright Office's own proposal on orphan works would not be allowed.

Post digs deeper on that issue, and highlights why the TPP would kill any realistic reform to deal with orphan works:

It appears that the latest version of the treaty contains, buried within its many hundreds of pages, language that could require the U.S. to scuttle its plans for a sensible revision of this kind. [I say that this “appears” to be the case, because, of course, the text of the TPP has not been revealed to the public, so all we have are leaked versions appearing from time to time on WikiLeaks.] Any provision of U.S. law that eliminated “pre-established damage” or “additional damages” for any class of works could be a violation of various TPP provisions requiring that such damages be made available, and it even appears that distribution of orphan works would have to subject the distributor to criminal copyright liability.

And, as he notes, this is actually a really big deal, even as some pretend that orphan works are just a small problem:

And if you’re still wondering “Is this really such a big deal?,” multiply it all by 10 million (or more). Remember Google Books? I don’t know about you, but I was pretty excited by the thought that every book ever published was going to be available to me over the Net — with all the lousy news out there, that sure sounded like a good thing for the human race, no? Well, the Google Books project foundered largely because of the orphan works problem. Even Google is not willing to take on $100 billion or so of potential exposure to infringement claims, and its attempts to reach a settlement that would have waived the rights of “orphan works” copyright holders to get statutory damages was unavailing — on the grounds that no court can approve a settlement waiving the statutory rights of persons who are not only not present in the courtroom to weigh in on the settlement, but who haven’t even been notified — because, of course, nobody knows who they are — that there is a settlement.

And yet, through a few choice phrases in the TPP, we may end up stuck with the orphan works problem... forever. That doesn't seem like a good policy decision, and it's not even one that the USTR will discuss publicly since the agreement is still "secret."

Filed Under: copyright, copyright office, david post, orphan works, tpp, ustr