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ISPs' copyright obligations under treaty could infringe individuals' rights, claim groups

Internet service providers (ISPs) will face an increased risk of infringing copyright laws and could infringe users' rights under a new international trade treaty being negotiated, campaigners have claimed.30 Aug 2012

Groups including the Electronic Frontier Foundation (EFF) in the US, Open Media in Canada and InternetNZ in New Zealand have all outlined their concerns about the Trans-Pacific Partnership agreement (TPP) in a new joint statement. The TPP is currently being negotiated by the US, Australia, Canada, Japan and eight other Pacific-region countries.

In their statement (2-page / 459KB PDF) the groups raised concern about a lack of "transparency" in how the treaty is being negotiated and said that parts of the text, which was leaked earlier this month, would lead ISPs to be exposed to an enhanced threat of infringing copyright and that internet users' rights would also be unfairly impinged upon.

"The US approach of seeking higher levels of copyright protection combined with a minimally effective provision on limitations and exceptions may end up generating greater risks of liability for ISPs," the statement said. "The proposed US text for the TPP ... indicates that ISPs would be required to take measures to prevent infringement."

"With its TPP proposals, the USTR is putting peoples' freedoms and ability to innovate at risk, while imposing greater barriers to development and human rights particularly for those from developing countries. The scope of the text proposed by the US and Australia will restrict rights that are essential to access to information, culture, science, education, and innovation," it said. "We cannot accept these limitations on fundamental human rights."

"We urge negotiating countries to oppose the USTR's (Office of the US Trade Representative's) maximalist approach to intellectual property. We urge the negotiating Parties to uphold international standards, including the numerous flexibilities that exist in agreements set at the more transparent multilateral fora that are more appropriate to the public interest of their citizens," the groups added.

On 3 August the Knowledge Ecology International website published text that has been the subject of negotiations in the TPP. The text concerned the negotiating countries' views on how limitations and exceptions to copyright could be applied.

According to the leaked text both the US and Australia want signatories of the treaty to "seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to, criticism, comment, news reporting, teaching, scholarship and research."

However, counter-proposals have been agreed upon by five countries, including New Zealand, Chile and Malaysia. Those proposals would allow individual countries to draw up their own limitations and exceptions to "copyrights, related rights, and legal protections for technological protections measures and rights management information ... in accordance with its domestic laws and relevant international treaties." The US and Australia oppose such plans.

The US and Australia are also opposed to allow signatories of the TPP to "carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws." That text had also been drafted by the five-country axis, which includes Brunei and Vietnam.

The civil society groups said that the US and Australia plans would "cause numerous potential problems for the kind of balance in copyright systems", contrary to the stated aims of the USTR. They also claim that the countries' proposals would "create chilling effects in the ability of users and entrepreneurs to innovate" and that this would be particularly the case in countries where there is no 'fair use' right to utilise copyrighted material.

"We firmly believe that countries should be able to tailor copyright exceptions and limitations to their domestic needs, and extend such limitations into the digital environment to create new exceptions as they find appropriate," the groups' statement said. "We consider that the proposal pushed forward by New Zealand, Chile, Malaysia, Vietnam and Brunei – which also leaves to each country to decide what is appropriate for their digital environment - is a better solution."

The groups said that the US and Australian proposals do not align with other international agreements on intellectual property rights and urged the negotiating parties to make the "official proposals" from the negotiations on the TPP available for wider scrutiny.

Earlier this year the European Parliament voted to oppose another international agreement, which contained anti-piracy provisions, following intense criticism of the text by digital rights campaigners as well as the EU's own data protection watchdog.

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Expertise in Copyright

Copyright is an extremely valuable, often unrecognised or misunderstood right which protects a whole range of original materials including written materials, software, artistic materials, music and dramatic works. It arises automatically without the need for registration in most countries and protects these materials from unauthorised copying. It is essential in business to identify such rights, ensure they are owned by the correct entity, properly protected, enforced and exploited.

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