Leaked Information On The Trans-Pacific Partnership: Negotiating Parties

{COPYRIGHT AND RELATED RIGHTS}

{Section G: Copyright and Related Rights [¹²⁴]}
Article QQ.G.1: {Copyright and Related Rights / Right of Reproduction}

(Note: Most of Section G draws from the standard U.S. “template” for negotiating free trade agreements. Comparison may be made to:

U.S.–Chile FTA, Jun. 6, 2003, 42 I.L.M. 1026 {full text here}
US DR-CAFTA May 28, 2004, 43 I.L.M. 514 {full text here}
U.S.-Morocco FTA, June 15, 2004, 44 I.L.M. 544{full text here}
U.S.-Bahrain FTA, Sept. 14, 2004, 44 I.L.M. 544 {full text here}
U.S.-Peru TPA, Apr. 12, 2006. {full text here})

1. Each Party shall provide¹²⁵ that authors, [NZ oppose: performers], and producers of phonograms¹²⁶ have the right¹²⁷ to authorize or prohibit all reproductions of their works, (Note: This language appears in the standard US Free Trade Agreement “template” — it is most recently apparent in Art. 18.4.1 of the IP chapter in US-Korea FTA.

Sean Flynn: The fact that something is included in the “template” is not a reason to think it is good or democratically legitimate. The “template” just means language that was included in other secretly negotiated bilateral trade agreements. The real test should the degree it expands the norms and enforcement procedures of the multilateral system. Here, NZ opposes the language “performers and producers of phonograms” because that norm is not part of the multilateral system they have joined. Although the right or reproduction dates to Berne — TPP expands that by making it enforceable through a new trade regime that the US wants to allow to be enforced directly by companies against state in so-called investor-State dispute.)

[NZ oppose: performances], and phonograms, [¹²⁸] in any manner or form,[¹²⁹] VN/CA/NZ oppose: permanent or temporary (including temporary storage in electronic form) (Note: Although this language is standard in the US FTA template, the “temporary copy” issue is a source of some controversy. A description of the issue by EFF’s Maira Sutton is here; Jonathan Band’s 2005 scholarly article on whether US law was consistent with its own free trade agreements provides additional commentary; Margot Kaminski notes on Concurring Opinions that there is a circuit split on this issue.

It is not clear whether this provision remains consistent with U.S. law in the wake of the “Cablevision” case, Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). In that case, a federal appellate court held that a buffered copy which existed for only 1.2 seconds was too transitory to be relevant to copyright law.)

[¹³⁰][¹³¹] [VN propose: it shall be a matter for national legislation to determine exceptions and limitations under which the right may be exercised].

Article QQ.G.2: {Copyright}
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, (Note: Berne Convention for the Protection of Literary and Artistic Works, as last revised July 24, 1971, amended Oct. 2, 1979, S. Treaty Doc. No. 99-27, 828 U.N.T.S. 221 Full text here.) each Party shall provide to authors the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such

–FOOTNOTES–
¹²⁴ Negotiator’s Note: MX is still reflecting the coverage of related rights in this chapter.
¹²⁵ The Parties reaffirm that it is a matter for each Party’s law to prescribe that works in general or any specified categories of works, performances and phonograms shall not be protected by copyright or related rights unless they have been fixed in some material form.
¹²⁶ References to “authors, performers, and producers of phonograms” refer also to any successors in interest.
¹²⁷ With respect to copyrights and related rights in this Chapter, the “right to authorize or prohibit” and the “right to authorize” refer to exclusive rights.
¹²⁸ [US/AU/PE/CA/CL/MX/SG/MY/NZ/VN propose: With respect to [PE/CL/MX oppose: copyright and] related rights in this Chapter, a “performance” means a performance fixed in a phonogram unless otherwise specified.]
¹²⁹ [VN/BN/CA propose: The reproduction right, as set out in Article 9 of the Berne Convention [CA propose: and articles 7 and 11 of the WPPT], and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works [CA propose: , performances and phonograms] in digital form. It is understood that the storage of a protected work [CA propose: , performance or phonogram] in digital form in an electronic medium constitutes a reproduction within the meaning of [CA propose: the articles referenced in this footnote] [CA oppose: Article 9 of the Berne Convention.]
¹³⁰ [CL/NZ/MY/BN/JP propose: It is consistent with this Agreement to provide exceptions and limitations for 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; and which have no independent economic significance.] [Negotiators Note: Discussions indicated no substantive objection to the concept, however, Parties continue to consider whether the footnote is required, where it might best be place d, and how it should be drafted.]
¹³¹ [CA/JP propose: It is a matter for each Party’s law to determine when a given act constitutes a temporary reproduction for the purposes of copyright and related rights.]

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a way that members of the public may access these works from a place and at a time individually chosen by them.¹³²Article QQ.G.3: {Copyright and Related Rights}
US/AU/PE/NZ/SG/CL/MX propose; VN/MY/BN/JP oppose: Each Party shall provide to authors, NZ/MX oppose: performers, and producers of phonograms the right to authorize or prohibit the importation¹³³ into that Party’s territory of copies¹³⁴ of the work PE oppose: NZ/MX: oppose: performance, or phonogram made without authorization, PE/AU/NZ/CA/SG/CL/MX/JP oppose: or made outside that Party’s territory with the authorization of the author, performer, or producer of the phonogram.^{135, 136}Article QQ.G.4: {Right of Distribution}
Each Party shall provide to authors, NZ/MX oppose: performers, and producers of phonograms the right to authorize or prohibit the making available to the public of the original and copies¹³⁷ of their works, NZ/MX oppose: performances, and phonograms through sale or other transfer of ownership.¹³⁸

–FOOTNOTES–
¹³² It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Chapter or the Berne Convention. It is further understood that nothing in this Article precludes a Party from applying Article 11bis(2) of the Berne Convention.
¹³³ NZ propose: For the purpose of this paragraph importation may exclude importation for private or domestic use.
¹³⁴ PE/NZ propose: The expressions “copies” in this paragraph refers exclusively to fixed copies that can be put into circulation as tangible copies. Negotiators’ Note: US can support the concept subject to final drafting. JP propose: A Party may comply with its obligations under this paragraph by legislating in the Party’s law that such importation, for the purpose of distribution, is deemed to be infringement. Negotiator’s Note: With this footnote, Japan can withdraw its opposition in the first line of QQ.G.3.
¹³⁵ US: With respect to copies of works and phonograms that have been placed on the market by the relevant right holder, the obligations described in Article QQ.G.3 apply only to books, journals, sheet music, sound recordings, computer programs, and audio and visual works (i.e., categories of products in which the value of the copyrighted material represents substantially all of the value of the product). Notwithstanding the foregoing, each Party may provide the protection described in Article QQ.G.3 to a broader range of goods.

(Note: This clause, supported by the US and opposed by most other TPP Parties, is plainly inconsistent with the “international exhaustion” principle articulated by the U.S. Supreme Court in Kirtsaeng v. Wiley. The Article provides that each party shall provide authors with the right to authorize importation of copies made without authorization, i.e., piratical copies. The U.S. proposes extending this importation right to copies made outside of the Party’s territory with the author’s permission.

This proposal embodies some lower courts’ interpretation of the first sale doctrine, 17 USC 109(a), prior to the Kirtsaeng decision. Under that interpretation, the exhaustion doctrine applied only to copies manufactured with authorization in the United States. Under that interpretation, an author could prevent the parallel importation into the U.S. of copies manufactured outside of the U.S. with the author’s permission.

However, in March 2013, the Supreme Court in Kirtsaeng rejected that interpretation of section 109(a), and instead found that the exhaustion doctrine applied to copies manufactured with the author’s permission, regardless of the place of manufacture. Accordingly, an author cannot prohibit the importation of copies manufactured outside of the U.S.This clause appeared in the Morocco-U.S. Free Trade agreement, but not KORUS. It also appeared in the proposed U.S. IP chapter leaked in 2011. The fact that the U.S. continued to promote this language on August 30, five months after the Supreme Court’s Kirtsaeng decision, is troubling.)

¹³⁶ Negotiator’s Note: The US is cAnnotateonsidering the relationship between this provision and other proposals regarding the exhaustion of IP rights, as well as other TPP countries’ legal regimes.
¹³⁷The expressions “copies” and “original and copies” subject to the right of distribution in this paragraph refer exclusively to fixed copies that can be put into circulation as tangible objects US/CA/SG oppose: , i.e., for this purpose, “copies” means physical copies.

(Note: What exactly constitutes a “copy” is subject to some uncertainty under US law. This is because the copyright holder’s reproduction and distribution rights under 17 USC 106 are defined as the right to make and distribute “copies.” The U.S. Copyright Act defines copies in Section 101 as “material objects… in which a work is fixed by any method now known or later developed…” The US opposition to the phrase “physical copies” may indicate a perception that “physical copies” is narrower than “material objects… in which a work is fixed.”

The majority of courts seem to conclude that digital files constitute “material objects,” but in a recent dissent from the denial of certiorari to Maverick v. Harper, Supreme Court Justice Alito questioned whether this was the correction statutory interpretation.)

¹³⁸ AU/VN/PE/NZ/BN/MY/SG/CA/CL/MX/JP propose: Nothing in this Agreement shall affect a Party’s right to determine the conditions, if any, under which the exhaustion of this right applies after the first sale or other transfer of ownership of the original or a copy of their works, performances, or phonograms with the authorization of CA/SG propose: the author, performer or producer CA/SG oppose: the right holder. (Negotiator’s Note: VN prefers this to be in the text as opposed to a footnote).

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Article QQ.G.5: Each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the author does not cease to exist because the authorization of the performer or producer is also required. Likewise, each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the performer or producer does not cease to exist because the authorization of the author is also required.

Article QQ.G.6: US/AU/PE/SG/CL/MX propose; VN/BN/NZ/MY/CA/JP oppose: Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:

(Note: This article reflects varying views among TPP countries on the proper term for copyright. [TRIPS Art. 14.5]9WTO | intellectual property (TRIPS) – agreement text – standards) provides for the life of the author+50 years. US law and US FTAs have imposed life+70 since the Sony Bono Copyright Term Extension Act (CTEA) of 1998, often derided as the “Mickey Mouse Protection Act.” As a Washington Post column and other commentators have argued, forcing nations to move to the “TRIPS-Plus” rule of life+70 would represent substantial benefits for some rightsholder constituencies.

Michael Geist provides some Canadian perspective on this in this post.)

(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and [MX propose: 100] [MX oppose: 70] years after the author’s death; and (Note: This is not new; Mexico proposed 100 year terms back in 2003.)
(b) on a basis other than the life of a natural person, the term shall be:
(i) not less than US propose; CL oppose: 95 AU/PE/SG/CL propose: 70 MX propose: 75 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or
(ii) failing such authorized publication within US propose; CL oppose: 25 SG/PE/AU/CL propose: 50 years from the creation of the work, performance, or phonogram, not less than US propose; CL oppose: 120 AU/PE/SG/CL propose: 70 years from the end of the calendar year of the creation of the work, performance, or phonogram.

Article QQ.G.7: {Term of Protection for Copyright and Related Rights}
NZ/BN/MY/VN/CA/JP propose; US/AU/SG/MX oppose: The term of protection of a work, performance or phonogram shall be determined according to each Party’s domestic law and the international agreements to which each Party is a party.

Article QQ.G.8:
Each Party shall apply Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (1971) (Berne Convention) and

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PE/SG/NZ/BN/US/VN/CL/MY/MX¹³⁹: the corresponding provision in Article 14.6 of the TRIPS Agreement, mutatis mutandis, to CA oppose: the subject matter, rights, and obligations CA propose; US oppose: rights of authors, performers and producers of phonograms in Section G.

QQ.G.8:
CA/JP/SG/BN/NZ/PE/CL/VN/AU140 propose: Each Party shall apply, mutatis mutandis, Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (1971) to the rights of authors, performers and producers of phonograms in Section G. A Party may provide for conditions, limitations, exceptions and reservations to the extent permitted in Article 14.6 of the TRIPS Agreement.

Article QQ.G.9: Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right¹⁴¹in a work, SG/BN/NZ/MY/VN/CL oppose: performance, or phonogram:

(a) may freely and separately transfer that right by contract; and
(b) by virtue of a contract, including contracts of employment underlying the creation of works, BN/SG/MY/VN/NZ/CL oppose: performances, and phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right.
CL: (c) Each Party may establish:
nbsp; (i) which specific contracts underlying the creation of works or phonograms shall, in the absence of a written agreement, result in a transfer of economic rights by operation of law; and
(ii) reasonable limits to the provisions in paragraph 2(a) cross reference to QQ.G.9(a)-(b) to protect the interests of the original right holders, taking into account the legitimate interests of the transferees.

Article QQ.G.X

–FOOTNOTES–
¹³⁹ Negotiators’ Note: AU/CA agree in principle but will reflect further on the language.
¹⁴⁰ Negotiators’ Note: AU supports this article ad referendum.
¹⁴¹ For greater certainty, this provision does not affect the exercise of moral rights.

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No Party may subject the enjoyment and exercise of the rights of authors, performers and producers of phonograms provided for in this Chapter to any formality.

Article QQ.G.10: {Copyright and Related Rights / Technological Protection Measures}¹⁴²
US/AU/SG/PE/MX^143,144,145 propose; MY/VN/BN/JP oppose¹⁴⁶: (a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights¹⁴⁷ and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:

(i) knowingly, CL oppose: or having reasonable grounds to know¹⁴⁸, circumvents without CL oppose: authority CL propose: authorization any effective technological measure that controls access to a protected work, performance, phonogram, PE/CA/CL oppose: or other subject matter; or
(ii) manufactures, imports, distributes, CL oppose: offers CA/CL propose: for sale or rental to the public, provides, or otherwise traffics¹⁴⁹ in devices, products, or components, CL oppose: or offers to the public or provides services, that:
(A) are promoted, advertised¹⁵⁰, or marketed by that person, PE/SG/CL oppose: or by another person acting in concert with that person and with that person’s knowledge, for the purpose of circumvention of any effective technological measure,
(B) have only a limited commercially significant purpose or use other than to circumvent any effective technological

–FOOTNOTES–
¹⁴² Negotiators’ Note: Article QQ.H.4.15 should be discussed after discussions on this issue.
¹⁴³ Negotiator’s Note: MX supports this provision in principle.
¹⁴⁴ Negotiator’s Note: CA supports this provision in principle pending outcome of discussions on exceptions.
¹⁴⁵ Negotiator’s Note: CL is considering pending the outcome of the language of this proposal.
¹⁴⁶ Negotiator’s Note: NZ reserves its position on article QQ.G.10 pending the outcome of exceptions and limitations on TPMs protection. JP is considering a possibility of producing its proposal on Technological Protection Measures.
¹⁴⁷ Negotiator’s Note: CA reserves its position pending the clarification of the meaning of “rights”.
¹⁴⁸ Negotiator’s Note: CA pending clarification of criminal remedies.
¹⁴⁹ Negotiator’s Note: CA reserves its position pending clarification of “traffics”.
¹⁵⁰ Negotiator’s Note: CA reserves its position pending clarification of the terms “promoted” and “advertised.”

(Note: The term “technological protection measures” is a legal term of art referring to what most humans conventionally think of as Digital Rights Management (DRM).

Legal obligations to protect DRM were principally introduced into international law by the 1996 WIPO Copyright Treaty (WCT) {click for full text} and the WIPO Performances & Phonograms Treaty (WPPT) {click for full text.}

The US proposal generally tracks Sec. 1201 of the Digital Millennium Copyright Act (DMCA), helpfully annotated by Prof. Mark Lemley for RapGenius here. A ‘TPM’ section has been an established fixture of the US FTA template since 2003, when it appeared in agreements with Singapore and Chile.)

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measure, or

(C) are primarily designed, produced, or performed for the purpose of CA oppose: enabling or facilitating the circumvention of any151 effective technological measure, shall be liable and subject to the remedies set out in Article 12.12¹⁵²¹⁵³. CL propose: If the conduct is carried out in good faith without knowledge that the conduct in prohibited, a Party may exempt acts prohibited under this subparagraph that are carried out in connection with a nonprofit library, archive or educational institution.
Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit ¹⁵⁴ library, CA/CL propose: museum, archive, educational institution, or CA/CL oppose: public noncommercial broadcasting entity, CA propose: any other nonprofit entity as determined by a Party’s law is found to have engaged CA oppose: willfully and for purposes of commercial advantage CL oppose: or private financial gain CA propose: knowingly and for commercial purposes in any of the foregoing activities.

SG/AU/PE/CL¹⁵⁵ oppose: Such criminal procedures and penalties shall include the application to such activities of the remedies and authorities listed in subparagraphs (a), (b), and (f) of Article 15.5¹⁵⁶ as applicable to infringements, mutatis mutandis. ¹⁵⁷ CL propose: No Party is required to impose civil or criminal liability for a person who circumvents any effective technological measure that protects any of the exclusive rights of copyright or related rights in a protected work, but does not control access to such work.
(b) In implementing subparagraph (a), no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing subparagraph (a).
CL oppose: (c) Each Party shall provide that a violation of a measure–

FOOTNOTES–
¹⁵¹ Negotiator’s Note: CA reserves its position pending clarification of “any”.
¹⁵² Negotiator’s Note: CA seeks clarification as to whether article “12.12” is meant to refer to art icle QQ.H.4(15).
¹⁵³ Negotiator’s Note: CA reserves its position pending outcome of discussion of provision QQ.H.4(15).
¹⁵⁴ Negotiator’s Note: CA seeks clarification if nonprofit applies to all institutions.
¹⁵⁵ Negotiator’s Note: CA seeks clarification of the intention of this sentence.
¹⁵⁶ Negotiator’s Note: CA seeks clarification as to whether article “15.15” is meant to refer to article QQ.H.7(7). CA reserves position pending clarification of QQ.H.7(7).
¹⁵⁷ US/AU: For purposes of greater certainty, no Party is required to impose liability under Articles 9 and 10 for actions taken by that Party or a third party acting with the authorization or consent of that Party. Negotiator’s Note: CA seeks clarification of this footnote.

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implementing this paragraph is independent of any infringement that might occur under the Party’s law on copyright and related rights.
(d) ¹⁵⁸ Each Party shall confine exceptions and limitations to measures implementing subparagraph (a) CL oppose: to the following activities, CL propose: certain special cases that do not impair the adequacy of legal protection of the effectiveness of legal remedies against the circumvention of effective technological measures CL oppose: which shall be applied to relevant measures in accordance with subparagraph (e):

(i) CA oppose: noninfringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities ¹⁵⁹, for the sole purpose of achieving interoperability of an independently created computer program with other programs¹⁶⁰ CA propose: reverse engineering activities with regard to a lawfully obtained copy of a computer program, for the sole purpose of achieving interoperability of the program or any other program;
(ii) CA oppose: noninfringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, CL oppose: unfixed performance, or display of a work, performance, or phonogram and who has made a good faith effort to obtain authorization for such activities, to the extent necessary for the sole purpose of research consisting of identifying and analyzing flaws and vulnerabilities of CL propose: encryption technologies¹⁶¹ CL oppose: for scrambling and descrambling of information CA propose: activities with regard to a lawfully obtained copy of a work, performance, or phonogram for the sole purpose of encryption research;
(iii) the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate online content in a technology, product, service, or device that itself is not prohibited under the measures

–FOOTNOTES–
¹⁵⁸ Negotiator’s Note: CA is considering these limitations.
¹⁵⁹ CL propose: For greater certainty, elements of a computer program are not readily available to a person seeking to engage in non-infringing reverse engineering when they cannot be obtained from literature on the subject, from the copyright holder, or from sources in the public domain.
¹⁶⁰ CL propose: Such activity occurring in the course of research and development is not excluded in this exception.
¹⁶¹ CL propose: Such activity occurring in the course of research and development is not excluded from this exception.

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implementing subparagraph (a)(ii)¹⁶²;
(iv) CA oppose: noninfringing good faith activities that are authorized by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network CA propose: security testing activities that are authorized by the owner or administrator of a computer, computer system or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system or computer network;
(v) CA oppose: noninfringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work CA propose: activities for the sole purpose of identifying or disabling a capacity to carry out collection or dissemination of personally identifying information;
(vi) lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes163;
(vii) access by a nonprofit library, CA propose: museum, archive, or educational institution to a work, performance, or phonogram not otherwise available to it, for the sole purpose of making acquisition decisions; and
CA propose: (viii) activities for the sole purpose of making a work, performance or phonogram perceptible to a person with a perceptual disability.
(ix) activities for the sole purpose of making an ephemeral reproduction of a work, performance or phonogram,
(x) circumvention of a technological measure on a radio apparatus for the sole purpose of gaining or facilitating access to a telecommunication service by means of the radio apparatus

–FOOTNOTES–
¹⁶² Negotiator’s Note: CA reserves its position.
¹⁶³ Negotiator’s Note: CA needs to reflect further on this paragraph.

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(viii) CA oppose: noninfringing uses SG oppose: of a work, performance, or phonogram in a particular class of works, SG oppose: performances, or phonograms when an actual or likely adverse impact on those noninfringing uses CL propose: or exceptions or limitations to copyright or related rights with respect to users is PE oppose: credibly demonstrated PE propose: found CL propose: demonstrated or recognized in a legislative or administrative review or proceeding SG oppose: by substantial evidence; provided that AU/PE oppose: any limitation or exception adopted in reliance upon this clause shall have effect for a renewable period of not more than three SG propose: four years AU/PE propose: any such review or proceeding is conducted at least once every four years from the date of conclusion of such review or proceeding.
CA propose: (xi) Each Party may provide further exceptions and limitations to measures implementing subparagraph (a) in relation to non infringing uses as determined through a legislative, regulatory, judicial, or administrative process in accordance with the Party’s law, following due consideration of the actual or potential adverse impact on those non infringing uses.¹⁶³
(i) Measures implementing subparagraph (a)(i) may be subject to exceptions and limitations with respect to each CL propose: situations and activity set forth in subparagraph (d).
(ii) Measures implementing subparagraph (a)(ii), as they apply to effective technological measures that control access to a work, performance, or phonogram, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (d) (i), (ii), (iii), (iv), and (vi).
(iii) Measures implementing subparagraph (a)(ii), as they apply to effective technological measures that protect any copyright or

–FOOTNOTES–

¹⁶⁴

Negotiator’s Note: CA is considering paragraph (e) pending the outcome on discussions on limitations and exceptions.

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any rights related to copyright, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (d)
(i) and (vi).

(f)

¹⁶⁵Effective technological measure

means any CA propose: effective technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, PE/CL/CA oppose: or other protected subject matter, or protects CA oppose: any copyright or any rights related to copyright CA propose: rights related to a work, performance or phonogram.CL propose: and cannot, in a usual case be circumvented accidentally.

Article QQ.G.11:

SG/CL propose

¹⁶⁶

: Nothing in this agreement shall require any Party to restrict the importation or domestic sale of a device that does not render effective a technological measure the sole purpose of which is to control market segmentation for legitimate copies of cinematographic film or computer program, and is not otherwise a violation of law.

Article QQ.G.12¹⁶⁷: {Technological Protection Measures}

CL/NZ/PE/VN/MY/BN/JP propose; AU/US oppose:

1. PE/SG oppose: Each Party VN propose: may VN oppose: shall provide legal protections and remedies against the circumvention of effective technological protection measures in their domestic copyright laws where circumvention is for purposes of infringing the exclusive rights of copyright NZ oppose: or related rights owners.

2. Each Party may provide that such protections and remedies shall not hinder or prevent uses of copyright or related rights protected material that are permitted under exceptions or limitations to the exclusive rights of copyright NZ oppose: and related rights owners, or the use of materials that are in the public domain.

PE/SG: It is understood that nothing in this Article prevents a Party from adopting effective and necessary measures to ensure that a beneficiary may enjoy limitations and exceptions provided in that Party’s national law, in accordance with Article QQG16, where technological measures have been applied to a work, performance or

–FOOTNOTES–

¹⁶⁵

Negotiator’s Note: CA is considering paragraph (f).

¹⁶⁶

Negotiators’ Note: NZ/PE/CA/AU/MX/MY/BN/VN support in principle pending drafting consultations.

¹⁶⁷

Negotiator’s note: SG/CA/MX is willing to consider a more flexible approach to TPM provisions.

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phonogram, and the beneficiary has legal access to that work, performance or phonogram particularly in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that work, performance or phonogram to enable the beneficiary to enjoy the limitations and exceptions under that Party’s national law.

¹⁶⁸

3. Subject to each Party’s international obligations, the Parties affirm that they may establish provisions to facilitate the exercise of permitted acts where technological measures have been applied.

Article QQ.G.13: {Copyright and Related Rights / Rights Management Information}

In order to provide adequate and effective legal remedies to protect rights management information:

(a) each Party VN oppose: shall VN: may provide VN oppose: that VN: legal remedies against any person who without authority, and knowing, or, with respect to civil remedies, having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of CA oppose: any CA propose: the copyright or related right VN oppose: , VN: :
(i) knowingly removes or alters any CA/JP propose: electronic rights management information;
(ii) MY/BN/VN/CA/JP oppose: distributes or imports for distribution rights management information knowing that the rights management information has been altered without authority; or
(iii) CA propose: knowingly distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, CL/NZ/MY/SG/VN oppose: performances, or phonograms, knowing that CA/JP propose: electronic rights management information has been removed or altered without authority VN oppose: , VN: .
VN oppose: shall be liable and subject to the remedies set out in Article

–FOOTNOTES–

¹⁶⁸

Negotiator’s Note: MY/VN/CL does not object in principle but needs to reflect further on the language.

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QQ.H.4(15)¹⁶⁹.¹⁷⁰ Each Party CA/MX/JP propose: may CA/MX oppose: shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, archive, CA propose: museum, MY: or educational institution MY/CA oppose: , or CL oppose: public noncommercial broadcasting entity CA propose: any other nonprofit entity as determined by a Party’s law. CL: established without a profit-making purpose, is found to have engaged CA oppose: willfully and for purposes of commercial advantage or private financial gain CA propose: knowingly and for commercial purposes in any of the foregoing activities. MY/CA propose: Each Party may provide that these criminal procedures and penalties do not apply to any other nonprofit entity as determined by a Party’s law. AU/SG/PE/CL/MY/NZ/BN/CA/MX/JP oppose: Such criminal procedures and penalties shall include the application to such activities of the remedies and authorities listed in subparagraphs (a), (b) and
(f) of Article 15.5 as applicable to infringements, mutatis mutandis.
SG/NZ/CL/MY/BN/VN/CA/JP oppose: (b) each Party shall confine exceptions and limitations to measures implementing subparagraph (a) to lawfully authorized activities carried out by MX propose: the government MX oppose: employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes.

(c)

Rights management information

means:

(i) AU/MY/CA/JP propose: electronic information that identifies a work, NZ/MY oppose: performance, or phonogram, the author of the work, NZ/MY oppose: the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, NZ/MY oppose: performance, or phonogram;
(ii) AU/MY/CA/JP: electronic information about the terms and conditions of the use of the work, NZ/MY oppose:performance, or phonogram ; or
(iii) any AU/MY/CA/JP: electronic numbers or codes that represent such information,

when any of these items CA propose: of information is attached to a copy–FOOTNOTES–

¹⁶⁹

Negotiator’s Note: CL/MY/NZ/BN/JP positions pending outcome of this provision.

¹⁷⁰

Negotiator’s Note: NZ/JP is considering the scope of obligations under this paragraph.

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of the work, NZ/MY oppose: performance, or phonogram or appears in connection with the communication or making available of a work, NZ/MY oppose: performance or phonogram, to the public.

(d) For greater certainty, nothing in this paragraph shall obligate a Party to require the owner of any right in the work, performance, or phonogram to attach rights management information to copies of the work, performance, or phonogram, or to cause rights management information to appear in connection with a communication of the work, performance, or phonogram to the public.

Article QQ.G.14: {Related Rights}

1. Each Party shall accord the rights provided for in this Chapter with respect to NZ/BN/MY oppose: performers and producers of phonograms to the NZ/BN/MY oppose: performers and producers of phonograms who are nationals

¹⁷¹

of another Party and to NZ/BN/MY oppose: performances or phonograms first published or first fixed in the territory of another Party

¹⁷²

A NZ/BN/MY oppose: performance or phonogram shall be considered first published in the territory of a Party in which it is published within 30 days of its original publication.

^173,174

2. Each Party shall provide to performers the right to authorize or prohibit:

(a) broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance; and
(b) fixation of their unfixed performances.

3. US/AU/PE/NZ/MY/BN/VN/CL/MX/SG propose ; CA oppose:

(a) Each Party shall provide to NZ oppose: performers and producers of phonograms the right to authorize or prohibit BN oppose: the broadcasting or

–FOOTNOTES–

¹⁷¹

Negotiator’s Note: CA reserves its position pending the outcome of FN10 (Art. QQ.A.7).

¹⁷²

For greater certainty, in this paragraph with respect to performances or phonograms first published or first fixed in the territory of a Party, a Party may apply the criterion of publication, or alternatively, the criterion of fixation, or both.

¹⁷³

For purposes of this Article, fixation means the finalization of the master tape or its equivalent.

¹⁷⁴

JP propose: A Party may comply with its obligations under this paragraph by legislating that performers and producers of phonograms are protected to the extent provided for in Article 3 of WPPT and/or Paragraph 3 of Article 1 of the TRIPS Agreement.

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any communication to the public of their NZ oppose: performances or phonograms, by wire or wireless means, including the making available to the public of those NZ oppose: 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.
US/CL/PE/MX/SG/MY/NZ/AU/VN/BN propose: (b) Notwithstanding subparagraph (a) and Article QQ.G.16.1 exceptions and limitations – 3 step test, the application of this right to analog transmissions and SG/VN/BN oppose: non-interactive, free over-the-air CL/PE/MX oppose: analog and digital broadcasts, and exceptions or limitations to this right for such activity, shall be a matter of each Party’s law.
US/AU/SG/CL/PE/VN/MY propose: (c) Each Party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with Article QQ.G.16.1 exceptions and limitations – 3 step test, provided that the limitations do not CL/PE oppose: unreasonably prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.

CA propose: Each Party shall provide to performers and producers of phonograms the rights to authorize or prohibit:

(c) the broadcasting or any communication to the public of their performances or phonograms; and
(d) the making available to the public, by wire or wireless means, of their 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.

Where, upon the data of signature of this Agreement, the right in subparagraph (a) has not been implemented by a Party, the requirement may be satisfied by providing a right to a single equitable remuneration for the direct or indirect use of phonograms published

¹⁷⁵

for commercial purposes for broadcasting or for any communication to the public.

¹⁷⁶

–FOOTNOTES–

¹⁷⁵ The term “published” in this paragraph includes phonograms that are made available in accordance with Article 15(4) of the WPPT.
¹⁷⁶Where a Party has availed itself of the option contained in Article 15(3) of the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT), the obligation contained in QQ.A.X – national treatment does not apply to the extent that a Party makes use of a reservation taken under that Article.”

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Article QQ.G.15:

For purposes of this Article QQ.G.1 and Article QQ.G.3 – 18, the following definitions apply with respect to performers and producers of phonograms:

(a) broadcasting means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent¹⁷⁷;
(b) communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of paragraph 3, “communication to the public” includes making the sounds or representations of sounds fixed in a phonogram audible to the public;
(c) fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;
(d) performers means actors, singers, musicians, dancers and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;
(e) phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;
(f) producer of a phonogram means the person who, or the legal entity which, takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds; and
(g) CA propose:¹⁷⁸publication of a performance or a phonogram means the offering of copies of the performance or the phonogram to the public,

–FOOTNOTES–

¹⁷⁷

US/SG propose ; CA/MX/CL/MY/VN/BN/CL oppose: For greater certainty, “broadcasting” does not include transmissions over computer networks or any transmissions where the time and place of reception may be individually chosen by members of the public.

¹⁷⁸

Negotiator’s Note; CA is considering the need for a deeming provision similar to article 15 (4) of WPPT.

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with the consent of the rightholder, and provided that copies are offered to the public in reasonable quantity.

Article QQ.G.16 {Limitations and Exceptions}¹⁷⁹Article QQ.G.X

1. With respect to Section G, 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.
2. Article QQ.G.X.1 neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, Berne Convention VN propose: Rome Convention, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty. ¹⁸⁰
(Note: This language is the so-called “Berne three-step test” which first appeared in the Berne Convention. It also appears in TRIPS, the WCT, the WPPT, and all US free-trade agreements since 2003.

JonBand: The language in this Article is an improvement over the language originally proposed by the U.S. in the summer of 2012. Paragraph 2, for example, is new. It makes clear that the three-step test language in paragraph 1 neither reduces nor extends the scope of similar three-step test language in previous agreements, including the Berne Convention, TRIPS, the WCT, and the WPPT. This is significant because those agreements make clear that certain exceptions and limitation (e.g., Article 10(1) concerning quotations, are not subject to the three-step test. This new paragraph 2, which actually appears in some of the U.S. Free Trade Agreements, confirms that those exceptions are still not subject to the three-step test.)

Article QQ.G.Y
Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.X, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to, CL/MY propose

(Note: This provision represents text first announced in July 2012 and advanced by the US Government. To the editor’s knowledge, no mandatory limitation or exception to copyright has been included in an international copyright instrument since the 1967 revisions of the Berne Convention in Stockholm. It is an unprecedented step toward including the US fair use doctrine, as codified in 17 USC 107, in binding international agreements. This language may reflect certain strengthening and clarifications since the initial US proposal last year.

JonBand: Specifically, this language does not include the confusing “Subject to and consist with [the three-step language]” phraseology in the U.S. proposal. Moreover, the U.S. proposal stated that “each party shall seek to achieve an appropriate balance in providing limitations or exceptions,” while this August 30 draft states that “each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.X….” The new language is much clear and stronger.)

¹⁸¹: , education, CL propose: and persons with disabilities

US/MY/SG/CA/PE/BN/MX/VN propose: , as well as facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled¹⁸²¹⁸³.

(Note: This language was no doubt driven by the recently concluded Marrakesh Treaty aimed at increasing access to copyrighted works to people with print disabilities. Chile’s proposed language would apparently apply to all people with disabilities, whereas the rest of the TPP negotiators limit the provision to people with print disabilities.)

Article QQ.G.Z

–FOOTNOTES–

¹⁷⁹Negotiators’ Note: CA supports a provision on limitations and exceptions and is reflecting further.

¹⁸⁰Negotiators’ Note: Delegations are considering the relationship between Article QQ.G.X.2 and new multilateral agreements concluded under the auspicies of WIPO and the agreements listed in Article QQ.G.X.2. Delegations will work to resolve this issue in Article QQ.A.6 (General Provisions – relationship to other agreements) or elsewhere.

¹⁸¹

Negotiator’s Note: SG/CA/PE/BN/NZ/AU is flexible on the inclusion of the word ‘education’ as the notion is already significantly covered by teaching, scholarships and research. US/MX believe the word ‘education’ is covered by teaching, scholarship and research, but is considering further.

¹⁸²

FN: For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under Article QQ.G.Y.

¹⁸³

Negotiator’s Note: NZ/AU is flexible on either options referring to persons with disabilities.

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CL/NZ/MY propose

¹⁸⁴

Article QQ.G.17: {International Exhaustion of Rights}
CL/NZ/SG/MY/BN/VN/PE/MX¹⁸⁵ propose; AU/US oppose: The Parties are encouraged to establish international exhaustion of rights.

(Note: As noted in comments to Section A of the Agreement, this refers to the notion of first sale, recently reaffirmed by the Supreme Court of the United States in Kirtsaeng v. Wiley. (Discussion of the case here.) The US position opposing “encouragement” of international exhaustion is difficult to reconcile with the unambiguous outcome of Kirtsaeng.)

CA propose: Nothing in this Chapter shall affect the freedom of the Parties to determine whether and under what conditions the exhaustion of copyright and related rights applies.

Article QQ.G.18: {Collective Management}

The Parties recognize the important role of collective management societies for copyright and related rights in collecting and distributing royalties

¹⁸⁶

based on practices that are fair, efficient, transparent and accountable, and which may include appropriate record keeping and reporting mechanisms.

–FOOTNOTES–

¹⁸⁴

Negotiator’s Note: Delegations are considering the appropriate placement of this issue under right of reproduction or L & E. There continue to be discussions regarding this issue and delegations have diverging views.

¹⁸⁵

Negotiators’ Note: CA reserves its position pending the outcome of discussions elsewhere in this Chapter.

¹⁸⁶

For greater certainty, royalties may include equitable remuneration.

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Resources:

More TPP IP Chapter-Leaked Draft texts

All TransPacific Partnership (TPP) Negotiating Parties texts

TPP IP Chapter-Leaked Draft 5. TPP IP Chapter-Leaked Draft- Section E&F: Patents, Undisclosed Data, Traditional Knowledge, & Industrial Design 7. TPP IP Chapter-Leaked Draft- Section H: Enfo

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