by Jeremy Malcolm
Close Comparison Reveals Negotiators Repeating TPP’s Mistakes
A secretive trade agreement currently being negotiated behind closed doors could lay down new, inflexible copyright standards across the Asia-Pacific region. If you are thinking of the Trans-Pacific Partnership (TPP), think again—we’re talking about the lesser-known Regional Comprehensive Economic Partnership (RCEP). While RCEP doesn’t include the United States, it does include the two biggest Asian giants that the TPP omits—China and India. So while you won’t read about it in the mainstream U.S. press, it’s a very big deal indeed, and will assume even more importance should the TPP fail to pass Congress.
When we reviewed the first leaks of the RCEP’s intellectual property chapter, they contained quite simply the worst provisions on copyright that we had ever seen in a trade agreement, but we also hoped that these extravagant claims put forward by Japan and South Korea did not represent anything like the final compromise text that would be likely to emerge. About one year later, how much closer towards that compromise have we advanced? Thanks to a more recent leaked version of the RCEP from Knowledge Ecology International (KEI), we can begin to answer that question. This post compares some of the pertinent provisions of RCEP to equivalent provisions of the TPP [PDF].
An important change from the previous leaked text, and an important distinction from the TPP, is that the current text of RCEP contains no requirement for countries to extend the copyright term beyond the minimum specified in the Berne Convention, which is usually the life of the author plus 50 years. This means that for countries that have not already extended their copyright term—and have not signed and ratified the TPP—RCEP would allow them to maintain their existing copyright term.
RCEP’s enforcement provisions and those of the TPP are uncomfortably close. The draft civil damages Article 9bis 2 of RCEP is close to a mirror of Article 18.74 of the TPP, in providing for courts to use measures such as lost profits and the market price or suggested retail price of goods in calculating damages for trademark or copyright infringement. Korea also proposes that each country should provide statutory damages in an amount sufficient to constitute a deterrent to future infringements.
Mirroring provisions found in Articles 18.74 and 18.77 of the TPP, Articles 9bis 6 and 9quater 6 of RCEP would allow courts to order the destruction not only of infringing goods, but also materials and implements used in their creation, such as servers used for hosting copyright-infringing files.
As in Article 18.77 of the TPP, Article 9quater 1 of RCEP would criminalize any copyright or trademark infringement that occurs on a “commercial scale”. By Article 9quinquies 5 of RCEP, the use of a recording device in a cinema is also made a criminal offense, apparently irrespective of any copyright exception such as fair use that could make that recording lawful.
The ISP liability provisions in Article 18.82 of the TPP are quite elaborate, in an apparent effort to push most countries towards a DMCA-like system of notice and takedown, while still accommodating those countries with existing systems that don’t conform to this model. The equivalent provision of RCEP is stripped of most of this complexity, and simply provides that countries should adopt enforcement measures that “endeavor to apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes.”
Japan proposes a footnote that notes that this could be accomplished by means of a safe harbor regime that limits remedies against online service providers, while preserving legitimate interests of rights holders. However, the footnote does not specify the details of how such a regime should operate. This is both good and bad. It is certainly good that RCEP does not prescribe a single, inflexible model, such as notice and takedown. However, it also fails to require countries to protect Internet intermediaries from liability for their users’ content.
Article 9quinquies 3, proposed by Korea, would also require parties to “take effective measures to curtail repetitive infringement of copyright and related rights on the Internet”—essentially suggesting something like a graduated response regime to warn and/or penalize Internet users who are suspected of copyright infringement. In tandem with this, the following Article would authorize either “competent authorities” (Japan) or “an administrative or judicial procedure” (Korea) to disclose personal information of alleged infringers to a rightsholder who claims infringement.
The RCEP proposals on Digital Rights Management (DRM) in Article 2.3 are a little more flexible than the equivalent Article 18.68 of the TPP. While RCEP still requires legal protection and remedies against the circumvention of DRM, this only covers DRM that constrains uses of the work that are not otherwise authorized or permitted by law.
Thus under RCEP, it would probably not be against the law to circumvent DRM in order to view DRM-protected content on a device of your choosing, or to copy parts of it for a fair use purpose, or for other purposes that are consistent with copyright law. This is an important limitation of the scope of a DRM circumvention provision.
To achieve the same result under the TPP, a country would have to pass exceptions to their DRM circumvention law, which can only be done after demonstrating an actual or likely adverse impact of the law on non-infringing uses. While the end result could be the same, the TPP’s “protections first, exceptions later” approach is a more roundabout way of limiting the effect of the DRM provision than the RCEP approach of constraining its scope to begin with.
The TPP also provides for penalties for the supply of devices or services that are primarily to be used for DRM circumvention (a narrow exception is carved out for institutions such as libraries, museums and non-profit broadcasters). If these acts are carried out for commercial purposes, the penalties become criminal. Such penalties are not replicated under RCEP, although Korea is advocating for the inclusion of at least civil penalties for the supply of circumvention devices or services.
Limitations and Exceptions
For some reason, the parties have found it necessary to confine the availability of copyright limitations and exceptions using the same narrow language in Article 2.5 of RCEP as is found in in Article 18.65 of the TPP. Although the same narrow three-step test is also found in the Berne and TRIPS conventions, the overall impact of this is that the treatment of limitations and exceptions in RCEP begins from a very negative starting point.
Australia then proposes a half-hearted positive obligation, modeled on that from 18.66 of the TPP, that each party “shall endeavour to provide an appropriate balance in its copyright and related rights system by providing limitations and exceptions… for legitimate purposes including education, research, criticism, comment, news reporting, libraries and archives and facilitating access for persons with disability.” The following sub-paragraph clarifies that this might include exceptions for fair use.
Even those who have taken a more charitable view of this provision than EFF does have suggested that it could have been improved [PDF] if the language “shall endeavour to” had been replaced with a more positive obligation to pursue balance in copyright. It is a shame that, based on the current text, the RCEP negotiators have failed to avail themselves of this obvious opportunity for improvement of the TPP, while remaining consistent with it.
Based on the current text proposals, RCEP may actually impose more stringent protections for broadcasters than the TPP does. The TPP allows authors, performers and producers to control the broadcast of their work, but it does not bestow any independent powers over those works upon broadcasters. RCEP, in contrast, could create such new powers; potentially providing broadcasters with a 50 year monopoly over the retransmission of broadcast signals, including retransmission of those signals over the Internet.
India’s preferred language for this proposal would even provide broadcasters with a right to prohibit the reproduction of fixations (that is, recordings) of broadcasts, independent of the rights of the copyright owner over that same content. This is such an extreme proposal that it is currently considered off the table in the ongoing negotiations for a broadcasters’ treaty at the World Intellectual Property Organization (WIPO).
These proposals for new monopoly powers for broadcasters are unnecessary, since broadcast content is already protected by copyright in most cases, and in those cases where it isn’t—such as the broadcast of public domain material—there are very good reasons why such content ought to be freely available for retransmission, fixation, and reuse. That’s why EFF is opposing plans for a broadcasters rights treaty at WIPO.
The TPP’s trade secrets language in Article 18.78 is more extensive than international law requires, and indeed is something of a mash-up of conventional trade secrets protection with U.S. cyber-espionage law. RCEP strips this back to the basics, with countries providing a few different options, all of which are based around the well-established international legal norms from the TRIPS Agreement.
Having said that, the RCEP negotiators’ failure to explicitly address the need for exceptions to trade secret protection for whistleblowers, journalists, and other disclosures in the public interest, represents another missed opportunity.
Without such an overbearing influence from Hollywood lobbyists, RCEP does manage to avoid some of the worst excesses of the TPP—such as the extension of copyright term, the prescriptive ISP liability regime, the most restrictive DRM provisions, and the expansion of trade secrets law. But other provisions, most notably on enforcement, are largely unchanged from the TPP.
By the same token, RCEP fails to improve much on the TPP in areas where it quite easily could; most notably in the language on limitations and exceptions, which fails to require countries to include an equivalent to fair use in their copyright laws.
Finally, the proposed language on related rights for broadcasters is actually worse than the TPP. The TPP negotiators were wise to mostly avoid this topic, being that it is currently still under negotiation at WIPO, whereas RCEP has plunged ahead and sought to enshrine obligations for the protection of broadcasters that remain controversial and untested around the world.
Worst of all is that none of these problems would have come to light if the text of the agreement had not been leaked. Like the TPP before it, the RCEP is being negotiated in a secretive fashion, behind closed doors, without adequate input from Internet users or any other of the stakeholders whose lives and livelihoods it will affect.
The next round of RCEP negotiations will take place behind closed doors in Perth, Australia, next week. It will be the first round at which negotiators will open the doors by a little crack, to allow some presentations from public interest groups. However, this is not enough. In the light of this latest leak, the negotiators ought to follow the recommendations of the Brussels Declaration on Trade and the Internet, and formally release the draft text to the public.