Today Creative Commons published a policy analysis covering several copyright-related issues presented in the draft intellectual property chapter of EU-Mercosur free trade agreement. We examine issues that would be detrimental to the public domain, creativity and sharing, and user rights in the digital age. [The policy paper is also available in Spanish and Portuguese.]
The European Union (EU) and the Latin American sub-regional bloc consisting of Argentina, Brazil, Paraguay, and Uruguay (Mercosur) have been negotiating a free trade agreement (FTA) since 2000. The EU-Mercosur FTA is expansive, addressing trade in industrial and agricultural goods, potential changes to rules governing small- and medium-sized businesses as well as government procurement, and intellectual property provisions such as copyrights and patents. The EU-Mercosur FTA negotiations continue during a time when several of the affected countries—including Argentina, Uruguay, Paraguay and even the EU—are involved in a review of their own copyright rules.
Only a few chapters of the draft EU-Mercosur FTA have been made available for public inspection. In November 2016 the EU released a draft of the chapter dealing with intellectual property, which is the most recent publicly available version. Civil society organisations and the public are typically excluded from participating in—or even observing—the negotiation meetings.
The EU-Mercosur FTA negotiations take place in an environment where an increasing level of copyright policy is being constructed through multilateral trade agreements. There are several current negotiations underway, including the Trans-Pacific Partnership (TPP) and the renegotiation of the North American Free Trade Agreement (NAFTA).
Each of these agreements include provisions regulating intellectual property, and the recent negotiation of these trade pacts shows that when copyright is put on the table, there’s a significant push to drastically increase enforcement measures for rights holders, lengthen copyright terms, and demand harsh infringement penalties. While the demands of rights holders are fully addressed, there’s little consideration given to the rights of the public. Limitations and exceptions to copyright are downplayed, or not present at all. In the text we see the invisible (and powerful) hand of the EU, which wishes to export the intellectual property provisions most beneficial to rightsholders (such as harmonized longer terms), but only wants to permit the absolute minimum when it comes to limitations and exceptions (such as only temporary copying).
- Copyright term extension is unnecessary and unwarranted: The draft IP chapter proposes to extend the duration of copyright protection for those countries that do not already adhere to the life + 70 year term. Increasing the duration of copyright protection delays works from entering the public domain, where they may be used by anyone for any purpose. It also exacerbates related challenges, such as the orphan works problem.
- User rights must be protected by expanding limitations and exceptions: Copyright protection and enforcement measures should always be tempered by recognizing and upholding the rights of users in the copyright ecosystem. But the IPR chapter doesn’t include similar safeguards introduced in the latest trade agreements and international copyright agreements that promote and protect balance in copyright agreements.
- Mandatory remuneration frustrates the intentions of some Creative Commons licensors: The IPR chapter includes a provision that would require remuneration for performers and producers of musical works. The provision may be well-intended, but would interfere with the operation of some Creative Commons licenses by requiring a payment even when the intention of the author is to share her creative work with the world for free.
- Technical protection measures must not limit the exercise of user rights: The IPR chapter includes prohibitions to circumventing technological protection measures to gain access to a work, as well as a provision that would prohibit the creation and sharing of technologies that could enable a user to circumvent technological protection measures. The problem is that it doesn’t take into account situations where users should be able to leverage a limitation or exception, but cannot due to prohibitions on circumventing a technological measure.
- Precautionary injunctions against “imminent” infringements harms freedom of expression and the rule of law: The IPR chapter introduces the idea that an injunction could be levied against both potential infringers and intermediaries (including ISPs) for “imminent” copyright infringements that have not yet occurred.
- Trade agreement negotiations must be transparent and involve the public: Trade agreement negotiations need to be transparent and participatory. They are not. The secrecy demonstrated in the negotiation of the TPP and other FTAs left civil society organizations like Creative Commons and the broader public at an extreme disadvantage, as only a privileged few stakeholders invited into the closed negotiation circle had their interests fully considered.