Aug. 31 — The Trans-Pacific Partnership should not restrict Congress from enacting a law to expand access to orphan works, a coalition of five interest groups said in a letter to the U.S. Trade Representative Aug. 31.
The coalition—consisting of the Authors Alliance, Creative Commons, the Electronic Frontier Foundation, Knowledge Ecology International and New Media Rights—requested that the TPP not restrict Congress from adopting measures allowing greater access to orphan works and lesser penalties for infringement, as suggested in a June 4 report and draft legislation by the Copyright Office.
Although the latest draft of the TPP's intellectual property section—leaked in May by Knowledge Ecology International—doesn't speak specifically to orphan works, the coalition says it requires specific remedies for copyright infringement in ways that previous international agreements have not.
“When people think of copyrights, a lot of people focus on the rights and exceptions to the rights, so a compulsory license or a fair use would be an exception to the right, but you can have an exception to the enforcement of a right in the same way,” James P. Love, director of Knowledge Ecology International, a nongovernmental organization focused on the implications of intellectual property rights on consumer protection, told Bloomberg BNA Aug. 28. “In the U.S., much of the flexibility is written into intellectual property law as an exception to the remedies or the enforcement as opposed to the right itself.”
“What the TPP does is that it changes everything,” Love said. “It actually creates no exceptions for remedies and really ramped up remedies from the WTO agreement, particularly for copyrights—the most aggressive remedies are for copyrights and trademarks, but particularly for copyrights, in the TPP.”
Specifically, provisions in the draft requiring criminal penalties for infringement “on a commercial scale” are “heavy-handed,” and “could go beyond existing U.S. law to treat even noncommercial uses of copyrighted content, including of orphan works, as illegal and criminal,” the Electronic Frontier Foundation said on its website.
“It's a separate approach from creating a compulsory license on the work itself or extending fair use, and it's a big deal legally because you have more flexibility in the Berne Convention and the World Trade Organization to limit the remedies for infringement than you do limiting the rights themselves—the rights are harder to limit than the remedies in the Berne and the WTO,” Love said.
The Copyright Office proposed limitations on remedies for copyright infringement of orphan works in its report and draft legislation, including restrictions on monetary and injunctive relief. The draft legislation also recommends strong limitations on damages for non-commercial use of orphan works—down to zero for libraries and some other institutions.
“It's a complicated piece of legislation that required a lot of consultation between publishers, photographers, writers of music and writers of text—all the people protected by copyright—as well as libraries and the technology companies,” Love said. “That legislation, which took years to craft, is a highly regarded set of proposals.”
“We're able to get both authors' groups and users' groups on the same letter, because we all agree that the TPP should not prevent this type of legislation from moving forward,” Love said. “Not all the groups on the letter think the legislation proposed by the [Copyright Office] is the best way to proceed, but they all agree it's among the feasible ways you can do it—everyone has their first choice, but this may be their second choice, buy they all think it is better than no solution at all.”
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