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OPLIN 4Cast #290: Copyright limitations and exceptions

Posted in 4cast

Last week, while many of us were enjoying fireworks in the sky, there were some equally stunning fireworks in international copyright law. Much of the buzz was about the United States’ new stance toward international “limitations and exceptions” — examples being First Sale and Fair Use, two limitations and exceptions in domestic copyright law that allow American libraries to operate, but which the U.S. until now has refused to include in international treaties. The fireworks started on July 3 during negotiations on the Trans-Pacific Partnership (TPP) trade agreement, and continued on Independence Day when the European Parliament rejected the U.S.-backed Anti-Counterfeiting Trade Agreement (ACTA).

  • How getting Internet provisions right in TPP trade talks could boost economy for all (Forbes/Ed Black)  “The U.S. government is under pressure by some, including many in Hollywood, not to support language that’s good for the Internet. But early this week USTR [United States Trade Representative] proposed some key copyright language that emphasizes the importance of limitations and exceptions (such as ‘fair use’ in the U.S.) that industries, which represent one-sixth of the U.S. GDP, depend on. Previous trade deals like the flawed Anti-Counterfeiting Trade Agreement would have exported the intellectual property enforcement provisions of the U.S. Digital Millennium Copyright Act minus the kind of limitations and exceptions that have allowed US companies to flourish.”
  • ACTA rejected by Europe, leaving copyright treaty near dead (ZDNet/David Meyer)  “ACTA demanded the criminalisation of ‘commercial-scale’ copyright infringement, but its definition of commercial scale was broad enough to turn bloggers putting copyrighted images on their blogs into criminals. The treaty also criminalised the circumvention of digital rights management (DRM) and introduced a US-style approach to the calculation of damages. This latter measure would have allowed the equation of unlawful downloads with lost sales — a questionable method, as many people download something only to go on and buy it.”
  • Op-ed: MPAA/RIAA lose big as US backs copyright “limitations” (Ars Technica/Harold Feld)  “…many US industries outside of Hollywood and the recording industry wanted ACTA to actually fight real counterfeiting. So not only did everyone end up wasting time on a treaty no one wants to sign anymore, businesses hoping to use the agreement to fight the folks making warehouses full of fake Rolex watches and such are totally out of luck. And why? Because the MPAA/RIAA [Motion Picture Association of America / Recording Industry Association of America] insisted ACTA needed lots of crazy stuff on intellectual property, and no one wanted to say no to the MPAA/RIAA.”
  • With ACTA dead, TPP shapes up to avoid the same fate (WebProNews/Zach Walton)  “So why is this such a big deal? The introduction of the Berne three-step test to TPP makes the copyright section at least appear desirable. The three-step test allows people to use copyrighted works in cases of criticism, parody, education, etc all under the banner of fair use. So is TPP fine after this? Not by a long shot, but it proves that the USTR is at least attentive to recent happenings around the world.”

TPP fact:
The Trans-Pacific Partnership started (under another name) as a 2005 trade agreement between Chile, Singapore, New Zealand, and Brunei. Negotiations to expand the agreement to eight other countries, including the United States, have been in process since 2007.