Copyright Limitations and Exceptions: What does the secret TPPA text say?

[update: See: Leak of TPP text on copyright Limitations and Exceptions]

This week, trade negotiators for the proposed Trans-Pacific Partnership Agreement (TPPA) are meeting in San Diego, where one are of focus concerns copyright policy. KEI earlier wrote to USTR with our concerns about the US proposals for copyright (see: http://www.keionline.org/node/1444). Today USTR published a blog, saying the "USTR Introduces New Copyright Exceptions and Limitations Provision at San Diego TPP Talks." USTR said:

For the first time in any U.S. trade agreement, the United States is proposing a new provision, consistent with the internationally-recognized “3-step test," that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.

The United States is proposing this at the current round of TPP talks in San Diego. The proposal has benefited from the input of a wide range of stakeholders, and we look forward to discussing it further and sharing more information as the TPP negotiations progress.

I have not seen the USTR proposal, and have had some bad experiences in the past speaking about text I had not actually read. KEI’s concern is that if the 3-step test is introduced, at a minimum it just gives right holders two chances to knock something out (once at WTO, and once at TPPA). But it could be worse, if this is designed to apply to the many areas of the Berne and Rome conventions that are not now subject to the three step test.

Not all Berne exceptions are subject to 3-step test: Articles: 2(4,7), 2.bis, 10, 11, 11.bis(2-3), 13(1-2) and the Appendix are not subject to the 3-step test, and neither are the first sale doctrine (Article 6 of the TRIPS) or the control of anticompetitive practices in contracts (Article 40 of the TRIPS). Article 15(1) of the Rome Convention is also not subject to the three step test. Will the secret TPPA text change this?

Given the fact that the WTO rules already provide for its own version of the 3-step test, there is no reason for the USTR to propose additional text within the TPPA, unless it wants to extend the jurisdiction of the 3-step to areas not covered by the WTO, or to provide right holders two opportunities to claim a particular exception is too favorable to users.

KEI has not seen the USTR proposal, which USTR claims "benefited from the input of a wide range of stakeholders." We intend to ask USTR for the text, and also the names of the stakeholders who were consulted on the text.

UPDATE. USTR is reportedly claiming it had previously shown the TPPA text on copyright exceptions to people outside of the USTR advisory board system. We are asking USTR for details on this.


More on the 3-step agreement.

This is an elaboration on the 3-step test in multilateral agreements. The 1996 WCT Copyright treaty has bad language on the 3-step test, but the WCT is not now part of the TRIPS agreement, and is only subject to dispute resolution via trade agreements outside of the WTO, like the TPPA.

If the WCT is referenced under the general provisions to the TPPA, you also get the 3-step test in the TPPA, subject, however, to the agreed upon statement regarding Article 10, which is helpful.

Note also that both Article 10 and the agreed upon statement regarding Article 10 the WCT were written in 1996, before the 2000 WTO decision on Section 110(5) of the United States Copyright Act. (See: World Trade Organisation Dispute Resolution Panel Report on Section 110(5) of the United States Copyright Act, http://www.wto.org/english/tratop_e/dispu_e/1234da.pdf). The 2000 WTO panel decision presented a restrictive view of the WTO's version of the 3-step test (Article 13 of TRIPS), motivating a number of academics to argue for a new interpretation of the 3-step test that is more liberal. One influential expression of this view is the Declaration on a Balanced Interpretation of the "Three-Step Test" in Copyright Law. (http://www.ip.mpg.de/de/pub/aktuelles/declaration-threesteptest.cfm).


The initial 3-step test was connected to Article 9 of the Berne Convention.

Berne Convention for the Protection of Literary and Artistic Works
Article 9
Right of Reproduction:
1. Generally; 2. Possible exceptions; 3. Sound and visual recordings

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

A modified version appeared in the 1994 WTO TRIPS Agreement. Among other things, the TRIPS 3-step test was not specifically related to the reproduction right in the Berne Convention, and it replaced author with right holder, reflecting the more corporate focus of the TRIPS. It is also interesting to note that the provisions in the TRIPS concerning both patents and trademarks have different three-step tests, that give status to third parties.

1994 WTO Agreement On Trade-Related Aspects Of Intellectual Property Rights (TRIPS)

SECTION 1: COPYRIGHT AND RELATED RIGHTS
Article 13 Limitations and Exceptions

Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

SECTION 2: TRADEMARKS
Article 17 Exceptions

Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.

SECTION 5: PATENTS
Article 30 Exceptions to Rights Conferred

Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.

Yet another version was included as Article 10 of the 1996 WCT.

WIPO Copyright Treaty
(adopted in Geneva on December 20, 1996)


Article 10 Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.10

/10/ Agreed statement concerning Article 10: It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.

It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.


The 3-Step test in FTA agreements

On January 1, 1994, the North American Free Trade Agreement between the United States, Canada, and Mexico (NAFTA) entered into force.

NAFTA
Article 1705: Copyright

5. Each Party shall confine limitations or exceptions to the rights provided for in this Article to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

The United States-Jordan Free Trade Agreement (FTA) entered into force on December 17, 2001. Note the NAFTA language referring to limitation and exceptions "to the rights provided for in this Article" became limitations and exceptions "to exclusive rights" in the US/Jordan FTA.

United States-Jordan Free Trade Agreement (FTA)
ARTICLE 4: INTELLECTUAL PROPERTY RIGHTS
Copyright and Related Rights

16. Each Party shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holders.

The United States-Chile Free Trade Agreement (FTA) entered into force on January 1, 2004. The US/Chile FTA brought back the reference to "limitations and exceptions to rights" language from NAFTA, and added a footnote 17 which provided a common understanding of how the 3-step test would be interpreted on certain issues.


United States-Chile Free Trade Agreement (FTA)
Article 17.5: Copyright

3. Each Party shall confine limitations or exceptions to rights to certain 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.17

/17/ Article 17.7(3) permits a Party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws which have been considered acceptable under the Berne Convention. Similarly, these provisions permit a Party to devise new exceptions and limitations that are appropriate in the digital network environment. For works, other than computer software, and other subject- matter, such exceptions and limitations may include temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a lawful transmission in a network between third parties by an intermediary; or (b) a lawful use of a work or other subject-matter to be made; and which have no independent economic significance.

Article 17.7(3) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention, the WIPO Copyright Treaty (1996), and the WIPO Performances and Phonograms Treaty (1996).

The United States-Singapore Free Trade Agreement (FTA) entered into force on January 1, 2004.

United States-Singapore Free Trade Agreement (FTA)

ARTICLE 16.4 : OBLIGATIONS COMMON TO COPYRIGHT AND RELATED RIGHTS

2. (a) Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis(1) of the Berne Convention for the Protection of Literary and Artistic Works (1971) (“Berne Convention”), each Party shall provide to authors, performers, producers of phonograms and their successors in interest the exclusive right to authorize or prohibit the communication to the public of their works, performances, or phonograms, by wire or wireless means, including the making available to the public of their works, performances, and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them. Notwithstanding paragraph 10, a Party may provide limitations or exceptions to this right in the case of performers and producers of phonograms for analog or digital free over-the-air terrestrial broadcasting and, further, a Party may provide limitations with respect to other non-interactive transmissions, in certain special cases provided that such limitations do not conflict with a normal exploitation of performances or phonograms and do not unreasonably prejudice the interests of such right holders.

[...]

10. Each Party shall confine limitations or exceptions to exclusive rights in Articles 16.4 and 16.5 to certain 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.

ARTICLE 17.5 : COPYRIGHT WORKS

ARTICLE 17.6 : PERFORMERS AND PRODUCERS OF PHONOGRAMS

3. (c) Each Party may adopt limitations to this right in respect of other non-interactive transmissions in accordance with Article 17.4.10, provided that the limitations do not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.

The United States-Australia Free Trade Agreement (FTA) entered into force on January 1, 2005.


United States-Australia Free Trade Agreement (FTA)
ARTICLE 17.4 : COPYRIGHT

10. With respect to Articles 17.4, 17.5, and 17.6:

(a) each Party shall confine limitations or exceptions to exclusive rights to certain special cases that 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;

(b) notwithstanding sub-paragraph (a) and Article 17.6.3(b), neither Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorisation of the right holder or right holders, if any, of the content of the signal and of the signal;

(c) unless otherwise specifically provided in this Chapter, nothing in this Article shall be construed as reducing or extending the scope of applicability of the limitations and exceptions permitted under the agreements referred to in Articles 17.1.2 and 17.1.4 and the TRIPS Agreement.

ARTICLE 17.6 : PERFORMERS AND PRODUCERS OF PHONOGRAMS

3. (a) Each Party shall provide to performers and producers of phonograms the right to authorise or prohibit the broadcasting or any communication to the public of their performances or phonograms by wire or wireless means, including the making available to the public of those performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.

(b) Notwithstanding sub-paragraph (a) and Article 17.4.10, the application of this right to traditional free over-the-air (i.e., non-interactive) broadcasting, and exceptions or limitations to this right for such broadcasting activity, shall be a matter of each Party’s law.

(c) Each Party may adopt limitations to this right in respect of other non-interactive transmissions in accordance with Article 17.4.10, provided that the limitations do not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.

The United States-Morocco Free Trade Agreement (FTA) entered into force on January 1, 2006.


United States-Morocco Free Trade Agreement (FTA)
ARTICLE 15.5: COPYRIGHT AND RELATED RIGHTS

11. (a) With respect to this Article and Articles 15.6, and 15.7, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that 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.
(b) Notwithstanding subparagraph (a) and Article 15.7.3(b), neither Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal, if any, and of the signal.

ARTICLE 15.6: COPYRIGHT

ARTICLE 15.7: RELATED RIGHTS

3. (a) Each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means, including the making available to the public of those performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.

(b) Notwithstanding subparagraph (a) and Article 15.5.11, the application of this right to traditional free over-the-air (i.e., noninteractive) broadcasting, and exceptions or limitations to this right for such activity, shall be a matter of each Party’s law.

(c) Each Party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with Article 15.5.11, provided that the limitations do not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.

The United States-Bahrain Free Trade Agreement (FTA) entered into force on January 11, 2006

United States-Bahrain Free Trade Agreement (FTA)
ARTICLE 14.4: OBLIGATIONS PERTAINING TO COPYRIGHT AND RELATED RIGHTS

10. (a) With respect to this Article and Articles 14.5 and 14.6, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that 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.

(b) Notwithstanding subparagraph (a) and Article 6.3(b), neither Party shall permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.

ARTICLE 14.5: OBLIGATIONS PERTAINING SPECIFICALLY TO COPYRIGHT

ARTICLE 14.6: OBLIGATIONS PERTAINING SPECIFICALLY TO RELATED RIGHTS
3. (a) Each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means, including the making available to the public of those performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.

(b) Notwithstanding subparagraph (a) and Article 14.5.10, the application of this right to analog transmissions and free over-the-air broadcasts, and exceptions or limitations to this right for such activity, shall be a matter of domestic law.

(c) Each Party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with Article 4.4.10, which shall not be prejudicial to the right of the performer or producer of phonograms to obtain equitable remuneration.

The CAFTA-DR (Dominican Republic-Central America FTA) entered into force for the United States and El Salvador, Guatemala, Honduras, and Nicaragua during 2006, for the Dominican Republic on March 1, 2007, and for Costa Rica on January 1, 2009. With the addition of Costa Rica, the CAFTA-DR is in force for all seven countries that signed the agreement.

CAFTA-DR (Dominican Republic-Central America FTA)

Article 15.5: Obligations Pertaining to Copyright and Related Rights

10 (a): With respect to Articles 15.5, 15.6, and 15.7, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that 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.

Article 15.7: Obligations Pertaining Specifically to Related Rights

3. (a) Each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means, including the making available to the public of those performances and phonograms in such a way that

(b) Notwithstanding subparagraph (a) and Article 15.5.10, the application of this right to traditional free over-the-air noninteractive broadcasting, and exceptions or limitations to this right for such broadcasting, shall be a matter of domestic law.

(c) Each Party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with Article 15.5.10, provided that the limitations do not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.

The United States-Peru Free Trade Agreement (FTA) entered into force on February 1, 2009.

United States-Peru Free Trade Agreement (FTA)
Article 16.6: Related Rights

6. (a) Each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means, including the making available to the public of those performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.

(b) Notwithstanding subparagraph (a) and Article 16.7.8, the application of this right to analog transmissions and free over-the-air broadcasts, and exceptions or limitations to this right for such activity, shall be a matter of each Party’s law.

(c) Any limitations to this right in respect of other noninteractive transmissions shall be in accordance with Article 16.7.8 and shall not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.

Article 16.7: Obligations Common to Copyright and Related Rights

8. With respect to Articles 16.5 through 16.7, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that 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.

9. Notwithstanding Articles 16.7.8 and 16.6.6(b), no Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.

The U.S.-Korea trade agreement entered into force on March 15, 2012.

U.S.-Korea trade agreement
ARTICLE 18.4: COPYRIGHT AND RELATED RIGHTS

Footnote 11 to Article 18.4.1.

/11/ Each Party shall confine limitations or exceptions to the rights described in paragraph 1 to certain special cases that 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. For greater certainty, each Party may adopt or maintain limitations or exceptions to the rights described in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in the previous sentence.

10. (a) With respect to this Article and Articles 18.5 and 18.6, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that 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.

ARTICLE 18.5: COPYRIGHT
ARTICLE 18.6: RELATED RIGHTS

ARTICLE 18.6: RELATED RIGHTS

3. (c) Each Party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with Article 18.4.10, provided that the limitations do not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.

Beijing treaty on audiovisual performances, adopted by the Diplomatic Conference on June 24, 2012

Beijing treaty on audiovisual performances

Article 1 Relation to Other Conventions and Treaties

(3) This Treaty shall not have any connection with treaties other than the WPPT, nor shall it prejudice any rights and obligations under any other treaties1,2.

/fn 1/ Agreed statement concerning Article 1: It is understood that nothing in this Treaty affects any rights or obligations under the WIPO Performances and Phonograms Treaty (WPPT) or their interpretation and it is further understood that paragraph 3 does not create any obligations for a Contracting Party to this Treaty to ratify or accede to the WPPT or to comply with any of its provisions.

/fn 2/ Agreed statement concerning Article 1(3): It is understood that Contracting Parties who are members of the World Trade Organization (WTO) acknowledge all the principles and objectives of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and understand that nothing in this Treaty affects the provisions of the TRIPS Agreement, including, but not limited to, the provisions relating to anti-competitive practices.

Article 13 Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works.

(2) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer /9/.

/fn 9/ Agreed statement concerning Article 13: The Agreed statement concerning Article 10 (on Limitations and Exceptions) of the WIPO Copyright Treaty (WCT) is applicable mutatis mutandis also to Article 13 (on Limitations and Exceptions) of the Treaty.

/fn 10/ Agreed statement concerning Article 15 as it relates to Article 13: It is understood that nothing in this Article prevents a Contracting Party from adopting effective and necessary measures to ensure that a beneficiary may enjoy limitations and exceptions provided in that Contracting Party’s national law, in accordance with Article 13, where technological measures have been applied to an audiovisual performance and the beneficiary has legal access to that performance, in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that performance to enable the beneficiary to enjoy the limitations and exceptions under that Contracting Party’s national law. Without prejudice to the legal protection of an audiovisual work in which a performance is fixed, it is further understood that the obligations under Article 15 are not applicable to performances unprotected or no longer protected under the national law giving effect to this Treaty.

See also

Joint statement from EFF, Knowledge Ecology International, Public Knowledge, and Public Citizen. http://keionline.org/node/1453

From a December 2011 WTO meeting: Rachel Marusak Hermann, IP Experts Focus On 3-Step Test In Copyright, Discuss Way Forward, IP-Watch.

Wikipedia on the Berne three step test.

Max Planck Declaration on the Three Step Test.

meaning of 3 step test, precedents and implications

Jamie: If it is already in WTO and many FTAs, according to your analysis have had a 3 step test, how is this "for the first time" per USTR. I don't get it. Is this in here to make it look like they are doing something new?
Thanks.

1st time?

What we have not seen, and is not yet public, is the actual USTR proposal, which we assume, has some obligation to implement exceptions. The 3-step test language is important, because it will likely accompany the obligation, and may work at cross purposes.

James Love, Director, KEI