The Strategy Behind the U.S. Call For a Fair Use Provision in the TPP

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.


  1. Call me cynical, but I expect TPP to follow C-11’s line on fair use: that is, explicitly limited to works not protected by TPMs. We are moving towards a more-or-less explicit two-tier copyright regime, in which the MPAA and ESA get literally absolute protection in exchange for generous fair use limitations on copyrights whose owners aren’t so politically well-connected.

  2. James Plotkin says:

    Does this mean that if Canada officially signs onto the TPP, the Copyright Act will have to be modified to make fair dealing an open ended category as is the case in the US?

    If so, then this proposal by the USTR is a breath of fresh air in an otherwise shady international negotiation.

  3. Sean Flynn says:

    Still significantly flawed, not fair use
    Rumors are that the US proposal still contains the full scope of its version of the 3 step test that appears in other FTAs, which does not include the important consideration of the “interests of third parties.” Some say that it requires countries to promote “balance,” but does not say who or what is on either side of the scale. And no one has said so far that it would actually require an open ended balancing clause in a domestic copyright law — the kind of flexible standard reflected in fair use. It is difficult to say whether there will be any bite in it all. And there are even more rumors flowing about because USTR shared text with people not on its advisory committees, but that did not include any non-profit or academic I know of. Release the text!

  4. While googling Internet reactions to ACTA this morning, I was amused to see the Hollywood Reporter confuse “three-step test” with “three strikes”.

    “And the United States Trade Representative has just proposed a new copyright provision in the wide-ranging trade agreement, the Trans-Pacific Partnership, which is being negotiated in San Diego this week amongst nine Pacific Rim countries. In a statement, the USTR said the provision would include a “3-step test” similar to that proscribed in graduated response legislation.”

  5. Ray Saintonge says:

    Question to AWJ
    Is it Hollywood or the USTR that is “proscribing” instead of “prescribing” that 3-step test?

  6. Ray Saintonge says:

    One wonders whether this announcement is nothing more thann a tactic to blunt generally growing criticism of copyright law. It seems that the protests are beginning to take effect, but it’s too early to be complacent.

    In a global perspective Canada and the U.S. are already on the liberal end of fair use/dealing. Unfortunately, I don’t see much debate about that coming from the Europeans. I don’t know how the other TPP countries view the issue.

  7. anti-circumvention overrides fair use/dealing anyway. It’s like being generous by declaring you are giving all your blue marbles to the friend on your left, all your red marbles to the friend on your right with the overriding exception that you are keeping the round ones.