The Trans Pacific Partnership is a treaty among 12 nations: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. Many have criticized the secretive process by which it was negotiated over the last 5 and a half years, but on October 4, 2015, negotiations ended and all of the member states agreed in principle to a treaty whose text was disclosed on November 5, 2015 by the U.S. Trade Representative.
This treaty hasn’t been signed into law yet by anyone, and it may never be. But its language and concepts may become the law in at least some of the 12 member countries – as well as other nations that sign onto it in the future – so it’s good for fans to understand the impact its intellectual property provisions would — and wouldn’t — have on fan activities. We wanted to provide this information now, as countries are considering adopting the TPP, to give fans an opportunity to review and comment on their governments’ adoption of it, if they want to.
In nearly every situation, the treaty requires member nations to strengthen protections for rights holders as a minimum floor for intellectual property rights; countries are allowed to adopt stronger protections than the treaty includes. Member nations are often allowed, or even encouraged, to make exceptions that would protect fans (and other users or follow-on creators), but they’re never required to. As a result, the treaty’s protections for rights holders are much stronger than its protections for fans. The treaty has some significant problems, discussed below, and doesn’t provide the safeguards for fans that we had hoped for. Overall, the treaty exports U.S. intellectual property laws to the other 11 countries, bringing the other countries’ intellectual property laws closer to their American counterparts.
Here are a few areas where legal changes might have an impact on fan activities in nations that sign on to the treaty. In addition to general provisions, we have noted a few particular areas of interest for fans in the US, Canada, Chile, and Japan. We will continue to watch for issues specific to other member nations.
1. Fair Use and Fair Dealing
The treaty encourages member nations to have “balance” in copyright law, which would include fair use and fair dealing exceptions to copyright infringement, but it doesn’t require them to do anything in particular to protect users or follow-on creators. For countries that already have fair use or fair dealing laws, it doesn’t change anything, so it won’t diminish fair use in the United States or fair dealing and the “YouTube Exception” in Canada. In general, it contains a lot of language that gestures toward a need for balance, but while pro-protection provisions are requirements, most of the provisions that support rights for users are merely suggestions. For example, the treaty provides only that parties will “endeavor to achieve appropriate balance in its copyright and related rights system,” but it gives little guidance about what balance countries might deem “appropriate.”
The treaty does allow member nations to place limitations or exceptions on copyright that give “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.” These are all interests that align with existing fair use and fair dealing laws, and with many fan activities. But the treaty doesn’t require member nations to have fair use or fair dealing laws, and doesn’t even say anything about how hard members have to try to move toward copyright balance. So this isn’t necessarily bad for fans, but it isn’t necessarily an improvement or expansion of fan rights either.
2. Vidding and Technological Protection Measures
The treaty requires member nations to provide “anti-circumvention” laws that punish people for breaking “technological protection measures” (that is, encryption or DRM) on copyrighted works or making tools for doing so. It requires that the punishment for violating these laws include both civil and criminal penalties for willful violation. It also forces member countries to make circumvention illegal even if the circumvention doesn’t lead to infringement. This is very similar to the anti-circumvention provisions that exist in the U.S. under the Digital Millennium Copyright Act—and it’s bad for fans, for exactly the same reasons the US provisions are bad. For example, vidders need to rely on breaking the DRM encryption on DVDs and online video sources in order to make high-quality vids.
In the U.S., the OTW has fought hard and won an exemption allowing vidders to break DVD, Blu-Ray, and online video encryption. That exemption is not at risk from this treaty, which says that member nations “may” create exceptions where there is an “actual or likely adverse impact of those measures on those non-infringing uses”—like the vidding exemption. But the treaty doesn’t require countries to pass those exceptions or create a framework creating and continuing those exceptions. Thus, member nations must import encryption rules into their copyright codes, but also can choose not to make exceptions at all, or can choose the inefficient and burdensome system we have in the U.S. The treaty also requires that when nations consider making exceptions, they also consider whether rights holders have already taken measures to allow non-infringing uses to be made. This means that rights holders might try to rely on “screen capture” and other similar technologies that they claim—falsely—allow vidders to make vids without decrypting originals.
3. The Public Domain
The public domain is the universe of works that aren’t protected by intellectual property law, either because protection has expired or because the law never protected them in the first place. The public domain is important for fans because it represents works for which fans don’t need to rely on exceptions like fair use or fair dealing to make follow-on works. The treaty states that the parties “recognize the importance of a rich and accessible public domain,” and “acknowledge the importance of informational materials…that assist in the identification of subject matter that has fallen into the public domain,” but it contains no affirmative duty on members to identify, preserve, or promote a robust public domain. This is disappointing—but although it does not require any nation to make things better for the public domain, it also doesn’t require any nation to make things worse, with the exception of copyright duration, which we describe next.
4. Copyright Duration
The treaty would require members to lengthen copyright protection so that works are protected for 70 years after the death of the author or, for works created by anonymous, pseudonymous, or corporate entities, 70 years after publication. This represents a 20-year extension from previous treaties, but it’s still shorter than U.S. copyright, which lasts for 70 years after the death of the author but lasts 95 or 120 years in the case of works created by anonymous, pseudonymous, or corporate entities. Ultimately, this 20-year extension may not make a practical difference for that many works—it’s an awfully long time either way—but it does mean that it will take longer for works to enter the public domain, which is bad for fans. The good news is that the treaty won’t require member nations to yank material back into copyright protection if copyright protection has already expired.
5. Notice-and-Takedown and Fan Privacy
The treaty requires member nations to have a “safe harbor” for Internet Service Providers (“ISPs”) that implement a notice-and-takedown regime that looks a lot like the one created by the U.S. Digital Millennium Copyright Act (“DMCA”). It also requires member nations to provide legal procedures, like those in the DMCA, that allow rights holders to get information about the identities of alleged infringers so they can enforce copyright directly. There are some carve-outs for countries like Canada, which has a “notice-and-notice” system, and Chile, where ISPs are not required to take down content without a judicial order. These carve-outs are limited to those countries, though; everyone else is bound to a U.S.-style system.
Although the treaty contains some safeguards for fans, like penalties for rights holders who issue wrongful takedown notices, it remains unbalanced. It permits, but does not require, member nations to implement a “counter-notice” procedure like the one in the DMCA that allows users to have their material restored in the case of an improper takedown. Likewise, it permits, but does not require, a Japanese-style system of verification of takedown notices by an independent body.
Privacy issues also intersect with the treaty’s provision on internet domain names, which requires countries to provide “online public access to a reliable and accurate database of contact information” of domain name registrants. While this provision would undermine privacy for domain name registrants, there would likely be ways to work around it. First, it would only apply to registrants in countries that sign on to the TPP, and the European Union, which has strict privacy laws, could try to block access to or distribution of this information for EU domain name registrants who are EU residents. Also, this provision might not prevent registrants from relying solutions that use “middlemen” (like GoDaddy and Register-dot-com), who could store registrants’ information in their own databases, identify themselves as Domain Name Contacts, and forward communications to the actual registrants without making the registrants’ identities or contact information publicly accessible to the whole internet.
6. Criminal Penalties
Finally, the treaty provides for criminal penalties for copyright infringers. This isn’t entirely new: many countries, including the U.S., provide criminal penalties for certain kinds of copyright infringement, some quite harsh. In the U.S., such penalties have mostly been reserved for large-scale piracy operations. But the treaty requires much more sweeping criminal penalties, requiring member nations to provide for criminal penalties for any act of willful copyright infringement “on a commercial scale,” even if not done for financial gain, if the infringement has a “substantial prejudicial impact on the interests of the copyright” owner in the marketplace. In fact, it goes even farther: member nations must allow “competent authorities” to initiate legal action for criminal penalties even without the need for a formal complaint by a private party or right holder. The treaty seems, however, to allow member nations to limit “competent authorities’” power to enforce copyright to situations where there is an “impact on the right holder’s ability to exploit the work in the market.”
Because copyright owners don’t object to most fan activities, the idea that authorities other than the copyright owner could enforce copyright has been a major concern for many fans during the treaty negotiation process. It was the subject of very vocal opposition by Japanese fans in particular, who were concerned that cosplay, doujinshi, and other fan activities would be subject to the nation’s already-harsh criminal copyright penalties, even though Japanese copyright owners have long allowed large-scale sales of fanworks, and even stores that primarily sell fanworks. The treaty provision isn’t as bad as some had feared, because it only applies to infringements that harm the copyright holder’s ability to exploit its work in the market. On October 5, the Japanese government released a summary of the TPP that confirmed exceptions for copyright infringement on an (unspecified) non-commercial scale. In Japan, this is being interpreted by some as a sign that lobbying by fannish organizations and legal scholars was successful and that the Japanese government wants to protect fanworks, presumably because it recognizes their social and (especially) economic value as a bedrock of Japanese manga culture. However, it’s still unknown how exactly these provisions will be reflected in Japanese, and other, laws. Fears also remain that certain aspects of Japanese fan culture that are more easily interpreted as “commercial”, like fanworks shops or individual fans who sell a lot of copies of their works, will still get in trouble. So there are still a lot of interesting developments to come for Japan. And for all the member nations–not just Japan–it’s still not clear why the treaty should ever allow for enforcement of copyright by non-copyright-holders, much less require it in any circumstance.
In the end, the treaty’s criminal penalties should not be able to impact fanworks in a gift economy, or even commissioned work, because they only apply to willful infringement, and they only apply to infringement “on a commercial scale” that has a “substantial prejudicial impact” on the interests of the rights holder. For most fanworks, especially the noncommercial transformative fanworks that the OTW is focused on, none of these three things is true, much less all three. And in countries with fair use and fair dealing laws, most noncommercial fanworks works are not infringing in the first place, so criminal penalties don’t make a difference. But the criminal penalty provisions are particularly harsh for fans in countries where there aren’t fair use or fair dealing to rely on.
If you have other questions, OTW Legal is always happy to answer questions about the TPP or other issues of fandom law! Feel free to e-mail them at email@example.com.