CCIA proposes alternative text for TPPA, but proposals do not address many problems in the text

The Computer & Communications Industry Association (CCIA) recently made proposals for what it considers to be necessary “to make the Internet work” in the Trans-Pacific Partnership Agreement. The proposals put forth either as additions or alternatives to some of what the US has tabled are, in general, a step in the right direction as they seek to improve copyright exceptions and limit liability. However, in our view, these proposals do not fully address the shortcomings in the US proposal provisions related to the Internet. While we recognize that CCIA represents an industry rather than civil society, the following concerns still remain:

First, we are concerned with this statement made in the CCIA document

Inclusion of these provisions will permit CCIA and its members companies to support TPP through to passage, and that support may assuage some of the concerns of some civil society groups and individual Internet users that TPP in some way will limit their use of or access to Internet services.

It is concerning that CCIA would assert that inclusion of these provisions alone would be enough to garner CCIA support of TPPA through to its passage when the text is still held in secrecy and it cannot be known what the final text will look like even if CCIA's proposals are adopted. One of the reasons that transparency and access to the negotiating texts is so important (and why briefings are, by themselves, insufficient sources of information) is so that one can analyze each proposal in the context of the entirety of the agreement. The interplay of the provisions is critical to a complete understanding of the effects and implications of the TPPA.

Additionally, even the inclusion of CCIA's proposal for the TPPA do not address all concerns regarding the Internet.

CCIA's proposal endorses inclusion of language on the “three step test,” found in the Berne Convention and TRIPS Agreement as well as specific limitations for temporary reproductions and a list of specific and general limitations and exceptions for fair use.

With respect to its proposal on the three-step test, CCIA has proposed the following language.

Each Party shall provide for limitations or exceptions to rights in special cases which do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.

We would recommend that this provision be amended to clarify that legitimate limitations and exceptions that fall outside the three-step test are not excluded. The provision could be drafted to ensure that it is without prejudice to other exceptions to rights that are otherwise permitted by international agreements such as TRIPS and the Berne Convention.

Additionally, although the CCIA proposal notes a series of specific areas where limitations and exceptions should exist with respect to the three-step, we would recommend inclusion of language that clarifies and ensures that the three-step test be interpreted in a way that takes into account the legitimate interests of third parties. Such interests include human rights, competition, and public interests such as science or cultural, social, educational or economic development.

CCIA proposes proportionate penalties for infringement and limitations on the liability of certain non-profit entities, such as libraries and education institutions, modeling its language off ACTA and U.S. copyright law. Although it has proposed language regarding taking “into account the need for proportionality,” CCIA has not suggested in its document, for example, that USTR remove the requirement for judicial authorities to consider the suggested retail price in calculating damages. The CCIA proposal also fails to address the problems with presuming the application of attorneys fees and court costs, which are not even consistent with U.S. law. Failing to address these other proposed provisions related to damages could weaken the intent of the CCIA proposal on proportionate damages.

CCIA apparently supports the US proposal on copyright safe harbors for service providers. It states

The safe harbors from copyright liability provided by the Digital Millennium Copyright Act have been critical to the growth on the Internet economy in the United States. Article 16 of the U.S. draft is based upon section 512 of the U.S. Digital Millennium Copyright Act, and appears in U.S. free trade agreements with many TPP countries, including Singapore, Australia, Chile, and Peru. CCIA supports inclusion in TPP of article 16 of the U.S. draft.

This statement is one of the more concerning ones in the CCIA document for several reasons. First, although Article 16 is largely modeled after the section 512 of the DMCA, it is not an exact replication and leaves out some important safeguards. For example, Article 16 of the leaked U.S. proposal potentially expands the definition of a “service provider” beyond an entity in all circumstances, thus raising a question of whether individuals could face liability. It also fails to include important privacy safeguards with respect to the identification of alleged infringers. The leaked U.S. proposal does not include the same limitation on liability relating to online material for non-profit educational institutions that is contained within DMCA. Thus, wholesale endorsement of Article 16 of the U.S. proposal seems unwarranted even for proponents of the DMCA.

Of course, some civil society organizations have raised concerns regarding the effects of DMCA in the U.S. and would therefore not support the export of this Act to TPPA negotiating parties. For example, Article 16 would seek to export the DMCA's “notice and takedown” system. Some have advocated instead for a “notice and notice” system which could be less likely to chill free speech or be abused by copyright holders than the DMCA regime.

The CCIA proposal represents a step in the right direction but does not go far enough in protecting consumers and the users of the Internet. While we support CCIA's efforts in improving the U.S. proposal with respect to those provisions that affect the Internet, we hope that much greater improvements will be made. Such improvements should take into account the public interest, the differences between net importing countries (all of the TPPA negotiating parties except the United States) and net exporting countries (the United States), and the differing levels of development amongst TPPA countries.