Will TPP-11 Nations Escape the Copyright Trap?

[grimm]

TPP-11 nations have the historic opportunity to rein in excessive copyright term extension 

Latest reports confirm that the Trans-Pacific Partnership (TPP) is being revived. The agreement had been shelved following the withdrawal of the U.S. from the negotiation process. Over the past year, countries eager to keep the pact alive have continued dialogue and rallied support of less enthusiastic members to move forward with the agreement without the U.S. A revised framework is expected to be proposed for approval at the Asia-Pacific Economic Cooperation (APEC) TPP-11 Ministerial Meeting in November.

We had previously reported the remaining eleven nations (TPP-11) had launched a process to assess options and consensus on how the agreement should be brought into force. A recent statement by New Zealand's Prime Minister suggests that countries favor an approach that seeks to replicate TPP provisions with minimal number of changes. The revival of the trade bloc comes at a critical juncture. Two trade agreements—the U.S. led North American Free Trade Agreement (NAFTA) and China led Regional Comprehensive Economic Partnership (RCEP) are racing to establish rules to control data flows and the digital economy. The TPP without the U.S offers an alternative to the China-centric and U.S led treaties under negotiation.

A speedy ratification would ensure TPP-11 nations' leadership on setting digital rules. Not opening up a lengthy renegotiation process would be essential to avoid delays in completing the treaty. This could explain why nations opted for a minimal changes approach. Although pushing through with provisions that countries have reached consensus on sounds reasonable, attempting to revive TPP without addressing the trade-offs made for access to U.S. markets that are no longer beneficial to negotiating countries makes little sense. Avoiding renegotiation or opening up of TPP will lead to enactment of its flawed and untested provisions with far-reaching ramifications on innovation, creativity and culture. Foremost amongst these is the TPP provision on copyright term extension.

Copyright Term Extension

One of the most controversial provisions included in the TPP negotiations was to increase the copyright term length for six of the signatory countries. The international standard term of copyright set by the Berne Convention is life of the author plus an additional 50 years. This standard term is followed by more than half of the TPP countries including Canada, Japan, Malaysia, New Zealand, Brunei, and Vietnam. Under the TPP terms, all these countries would be required to extend copyright term to a minimum term of the life of the author plus 70 years, mirroring the terms of the controversial US Sonny Bono Copyright Term Extension Act or the “Mickey Mouse Act”.

Such copyright term extensions, and their retrospective application to published works, are pushed through by major record and movie production companies such as the MPAA and RIAA which stand to benefit from them the most. The common justification for including such lengthy terms is to create economic incentive for creators. However, extending copyright terms creates little additional income to creators. An empirical study calculating the optimal copyright term to incentivize the most works found that the maximum comes at about 14 years. The world's leading economists agree that such long copyright term makes no sense.

Studies in some countries that have extended copyright term have concluded that it ultimately increases costs for consumers as additional royalties are sent out of the country. Excessively long copyright terms have often kept scholars from publishing or even obtaining access to material of real historical or cultural significance. Term extensions also significantly impact creativity as new works don't enter the public domain for long periods. In other words, copyright term extensions create limited gains in terms of fuelling innovation but severely restrict access to cultural heritage.

Term extension has been included as part of several bilateral and plurilateral trade agreements as it is easier to persuade countries to accept ever-longer terms as a trade-off for concessions offered in other areas during the negotiations. With the U.S out of the picture however, the TPP-11 have the opportunity to stop the export of the legislative frameworks that create a system where works cannot be freely built on.

One good reason to reject the extension of copyright term of published works to life plus 70 from the present 50 years is the cost of doing so. New Zealand has estimated that costs to extend from 50 to 70 years would average around $55 million per year. The costs for all 11 nations would be much higher and unnecessary in the absence of U.S. forcing the mandatory inclusion of the extension.

If TPP-11 goes forward and copyright term extension is excluded from the agreement, then countries like Japan, Malaysia, New Zealand, and Vietnam that have already enacted or are considering domestic legislation to implement the original TPP should ensure that this legislation also excludes the copyright term extension provisions.

Bringing TPP back from the dead will be easier said than done and there are more problems with this idea than we’ve explored in this post, but even if it does happen, the exclusion of copyright from a resuscitated TPP should be a no-brainer. No matter which way the agreement goes, member nations should ensure that there is no more theft from their rich and diverse public domain.