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October 2, 2015

Let's Get Real about What's Fair in TPP Copyright Provisions

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Last year I was invited by Bill Watson of the CATO Institute to make the case as to why it is critically necessary for U.S. negotiators to insist on strong IP provision in our trade agreements.  Intellectual property-intensive industries account for about two-thirds of U.S. exports – it would be malpractice for our negotiators NOT to work to prevent foreign theft of American innovation.

(I think I got the better of my fellow panelists at that event—you can watch it and judge for yourself.)

The TPP negotiators are in Atlanta this week trying hard to work through the last few, toughest issues, and Bill is back at it again, this time arguing that the United States should not only allow, but in fact demand broad exceptions to copyright in the laws of our TPP trading partners.  This again proves what I said last year – that the TPP debate is not really about trade, it’s about people who want weaker intellectual property rights.  (Bill was kind enough to reference this piece of mine in his, which is always nice.) Ok, so let’s have that debate.

Bill says that U.S. fair use should be mandated in the TPP for all participating countries to adopt.  For those not familiar with it, fair use is a broad exception to copyright in U.S. law; it is an equitable doctrine guided by a few statutory factors but ultimately limited only by the discretion of the judge or jury hearing the case.  Bill’s main point is that if we are asking other countries to adopt our copyright system, we should include all aspects of that system, including fair use.  That might sound reasonable--if we really were able to export our entire copyright system.  But that isn’t what we are doing and the real result of mandating a broad exception to copyright would be to undermine the TPP provisions and endorse continued theft of American creative products.

Reported piracy rates in TPP countries are as high as 81%.  Imagine what that must be like – you go to the store to buy a product for your family and 8 out of 10 items on the shelves are fake.  They may not work, they may even be harmful, and you can’t tell which are the real ones.  Does that sound anything like the American marketplace?  Of course not.  Does that sound like a country that needs stricter laws and enforcement, or big, boundless exceptions?

Let’s get real.  If we are going to talk about the whole copyright system in the U.S., let’s talk about rule of law, let’s talk about prosecutors who take cases without having to be bribed, let’s talk about judges who don’t reflexively rule against American right holders.  All those things are commonplace around the world and the weak enforcement of American copyrights in those places costs us jobs here at home.  And now the idea is to give those same judges an open-ended fair use exception and hope they apply it with the same restraint as U.S. courts?  Please.

Bill’s argument is also undermined by the fact that piracy isn’t a problem just for the creative sector; licensed online services consider piracy their greatest challenges in some foreign markets as well. Need proof? Just ask Spotify and Netflix. Nor is effective copyright protection and enforcement exclusively an American concern.  Earlier this year 85 organizations from 51 different countries (including 9 of the TPP countries) signed a letter calling for strong IP protections in trade agreements.

Instead of having intellectual property provisions in trade agreements, Bill suggests they be addressed at the World Intellectual Property Organization (WIPO), a UN-affiliated body.  Of course he must know that in that venue Russia, China, and other countries with massive piracy networks built on stealing American intellectual property can block any real progress on IP.  Which brings me back to one of my initial points – this debate is really about people who don’t like intellectual property.

Speaking of WIPO, one other point on this idea of mandating fair use—every time anyone at WIPO tries to pass any kind of norm-setting on intellectual property, all we hear about is the need for countries to be able to maintain local and regional flexibilities. In other words, to refine the fine details of their own IP policies within the four corners of basic IP law. Well, fair use is precisely those fine details—specific, granular defenses against infringement that are appropriate to each individual country. What that means is NOT mandating things like fair use through trade agreements, and allowing countries to implement whatever such structures they feel appropriate.

Finally, almost no one who talks about fair use actually understands what it is. For those folks, I recommend this piece.

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