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.