The USTR took many by surprise yesterday by announcing that it will seek the inclusion of a fair use provision within the Trans Pacific Partnership agreement. It specifically stated:
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 USTR announcement was welcomed by civil society groups, though most noted that the specific text was not released and that it could actually create new limits on fair use. That is certainly a concern – release of the text is essential – but the attempt to export a U.S.-style fair use provision makes sense for several reasons.
First, it blunts criticism that the TPP text is solely focused on restrictions and enforcement. Indeed, Canada just experienced a similar tactic, with many new consumer exceptions used to limit criticism of restrictive digital lock rules. Second, the provision is unlikely to require any change to U.S. law so does not require any substantive concessions on its part. Third, U.S. companies that rely on fair use would benefit from its broader application in other countries, thereby reducing the legal risks they face. Fourth, the recent disclosure that U.S. – E.U. trade talks would exclude IP likely helped pave the way for this approach since the EU is biggest obstacle to the global implementation of fair use. With IP off the table, advocating for fair use would not pose a problem within those talks.
The broader implications of this announcement are very significant as they establish the prospect of a global divide on fair use – the U.S., TPP countries, and others within the fair use camp, while the E.U. outside of it. Moreover, from a Canadian perspective, a full fair use provision would require further reform of Bill C-11, since the government stopped short of the approach in the recently-passed bill.