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TPP Fair Use Proposal Leaks Raising Concerns About New Restrictions

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Tuesday August 07, 2012
KEI has posted a leaked version of the U.S. fair use proposal for the Trans Pacific Partnership. The leak raises significant concerns about the language that may create new restrictions. It also highlights a divide among TPP countries (Canada has yet to participate in the negotiations) with Australia supporting the U.S. position but opposition emerging from many other participants, who oppose the U.S. language and support exceptions for anti-circumvention rules.
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Russell McOrmond said:

3-step not new, but access controls wipe out "Fair use" proposal.
The 3-step test doesn't create new restrictions, and is already the case for any country under Berne or WTO/TRIPS. And contrary to those lobbying for it in C-11, already incorporated in the criteria used for Fair Use in the USA and Fair Dealings in Canada (SCC 6 factors).

What we need to be focusing on is access controls. Once access can be denied except under specific contractual terms, then the entire of the Copyright Act can be circumvented -- no limits/exceptions effectively exist. Copyright has always been a list of activities which occur after one has access, with access and access controls being incompatible with copyright law.

I would normally be excited by all this talk in Canada and internationally about expanding limits/exceptions, except none of this matters in the presence of an access control TPM.
August 08, 2012

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