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United States International Free & Open Internet

Copyright for creativity, not criminalization

As this round of TPP talks nears an end, do you know what copyright infringement could look like if the proposed revisions to copyright law are implemented?

Copyright has long been touted as an important legal tool to promote creativity and innovation by ensuring that creators are able to have control over and profit from their works. However as the U.S. example has shown, copyright law is increasingly used by Big Media to limit new businesses, innovators, researchers, and creators. Similar copyright provisions have been proposed in the extreme and secretive Trans-Pacific Partnership (TPP)- currently in its 17th round of negotiations this week in Peru. If the TPP agreement is implemented, all participating countries will have to adhere to copyright rules that have long been bad for innovation, creativity, and the economy.

As our coalition partners the Electronic Frontier Foundation (EFF) have pointed out, far from encouraging creativity, U.S. copyright laws—notably digital locks—“have been used to stifle a wide array of legitimate activities”. In fact, the EFF explains, years of dealing with the unintended uses of digital locks“demonstrate that the statute reaches too far, chilling a wide variety of legitimate activities in ways Congress did not intend”. And these unintended uses are only likely to expand, especially if these provisions end up in the Trans-Pacific Partnership, as is currently proposed.

The original purpose of copyright was to promote the creation of new works by giving authors certain exclusive rights to that work for a limited time. This limitation is crucial because creativity and innovation are only possible by building upon or improving existing works. However as the EFF notes, “excessive copyright terms prevent artists and creators from accessing, remixing, and recreating new works out of existing ones.” Excessive copyright term lengths already limit creativity and innovation, and under the TPP these terms will get even longer.

The TPP also currently contains provisions that would make Internet Service providers and websites liable for copyright infringement by their users. This would have two negative consequences: first, the cost of such monitoring and legal expenses could be prohibitive for indie ISPs and websites; and second, in an attempt to avoid lawsuits ISPs and websites could preemptively take down, filter, or block user-generated content. The result would be the restriction of innovation, creativity, and free speech.

A third concerning provision is that of Digital Rights Management software, which can “easily be used to support anti-competitive business practices and hamper innovation that builds upon existing technologies.” The EFF points out that such provisions in U.S. copyright law have been consistently used against legitimate competitors rather than pirates, and have even been used to stifle free speech and scientific research.

In addition, the current copyright chapter of the TPP has a provision that designates even “temporary reproductions” of copyrighted works a potential copyright infringement. This overly broad definition is extremely worrying because the Internet functions by creating temporary copies. As the EFF notes, this definition “could be used to penalize and control a wide range of obvious legal activities.” In the U.S. such an interpretation has been mitigated by the ‘fair use’ provision, but this doesn’t currently exist in the TPP, or in many of the negotiating countries. This means that all kinds of legitimate uses of our media could be criminalized, limiting innovation and creativity.

It’s clear that U.S. copyright law has primarily been used to serve the interests of Big Media, and often limits individual creators, innovators, businesses, and the economy as a whole. Rather than implementing a broken copyright regime on an international scale, we need to make sure copyright law supports and incentivizes all innovators and creators.

We must reject copyright proposals that restrict the open Internet, access to knowledge, economic opportunity and our fundamental rights. Join us in calling for a Fair Deal.