The Trans-Pacific Partnership, Copyright Law and Education

Matthew Rimmer

There is much concern across the Pacific rim about the impact of the Trans-Pacific Partnership (TPP) upon public education. The secretive trade agreement involves a dozen nations across the Pacific, including Australia, New Zealand, Canada and the United States, and Indonesia may soon join.

Although the text was finalised at the Atlanta talks in October 2015, the Agreement has not yet been made public. (The NTEU has joined with other unions and civil society organisations in calling for the agreement to be revealed to facilitate public debate before any decisions are made by Parliament.)

So whilst we cannot examine all the text that may impact on public educations, WikiLeaks has published the final version of the Intellectual Property Chapter of the TPP. The Intellectual Property Chapter of the TPP alone, with its copyright term extension, limits on copyright exceptions, and enforcement measures, will have a significant impact for educators and public education.

Copyright term extension

After lobbying from Hollywood and the American music industry, the United States Trade Representative demanded that all TPP members provide copyright protection for the life of the author plus 70 years. Australia surrendered to such demands with the Australia-United States Free Trade Agreement in 2004. Moreover, Australia is in the anomalous position of providing perpetual copyright protection for unpublished copyright works. Australian librarians, curators, and archivists have protested against such laws with the ‘Cooking for Copyright’ event, ‘Baking Bad’, where librarians baked unpublished recipes and posted them on social media.

A number of other TPP members, including Canada, Japan, New Zealand, and Malaysia, currently have a copyright term of life of the author plus 50 years. The NZ Government has estimated that the copyright term extension will cost New Zealand $55 million per year. Michael Geist of the University of Ottawa has suggested that the copyright term extension will cost Canada in excess of $100 million per year.

The TPP would also limit the policy flexibilities available to address the problem of orphan works,where the author cannot be identified because they are lost or missing. That will only further compound problems in respect of copyright term extension.

Fair use

There has been a long discussion about the impact of the TPP on copyright exceptions. Notably, the United States enjoys a broad and flexible defence of fair use. In the recent litigation over the Google Books Project, the Second Circuit of Appeals rejected the claim of the Authors Guild that Google had infringed the copyright of authors and publishers. The court held that ‘Google’s unauthorised digitising of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses.’

In comparison, Australia lacks a broad defence of fair use or even a dynamic defence of fair dealing like Canada. Australia only has a narrow, limited, and purpose-specific defence of fair dealing. The Australian Law Reform Commission reviewed Australia’s copyright exceptions in light of the digital economy and recommended that Australia should follow the example of the United States to protect the ‘transformative’ uses of copyrighted materials through technological advancement, stating that the principle is ‘a powerful and flexible feature of fair use’.

The Coalition Government under Tony Abbott refused to implement the recommendations. It remains to be seen how the Turnbull Government will respond. The concern is that Australia is adopting the tougher copyright measures under the TPP, without the flexibilities of a fair use defence, which in part encourages civil society through parody and critique, as well as technological innovation.

Copyright enforcement

The TPP also prescribes a draconian regime in respect of copyright enforcement. For instance, it contains prescriptive provisions preventing the circumvention of digital locks. There is also a heavy regulation of intermediaries in respect of matters of copyright infringement. The TPP provides for an arsenal of intellectual property enforcement measures in respect of copyright law — including civil remedies, criminal offences, and border measures.

Moreover, there will be criminal penalties and procedures for disclosure of trade secrets. For instance, Jamie Love of Knowledge Ecology International commented, ‘In many sections of the text, the TPP would change global norms, restrict access to knowledge, create significant financial risks for persons using and sharing information, and, in some cases, impose new costs on persons producing new knowledge goods.’

Conclusion

The TPP will lock Australia into second rate international standards, as well as impose significant costs upon public education, with its push for stronger, longer copyright protection and with the poor state of Australia’s current copyright laws. Furthermore, until the full release of the TPP text, we will not be able to properly unravel the larger implications for higher education.

Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law in the Queensland University of Technology (QUT). He is a leader of the QUT Intellectual Property and Innovation Law research program, and a member of the QUT Digital Media Research Centre (QUT DMRC), the QUT Australian Centre for Health Law Research (QUT ACHLR), and the QUT International Law and Global Governance Research Program (QUT IL GG). Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, and Indigenous Intellectual Property. He is currently working on research on intellectual property, the creative industries, and 3D printing; intellectual property and public health; and intellectual property and trade, looking at the Trans-Pacific Partnership, the Trans-Atlantic Trade and Investment Partnership, and the Trade in Services Agreement. His work is archived at SSRN Abstracts and Bepress Selected Works.

This article appears in the November 2015 edition of Advocate:

Originally published at www.nteu.org.au, November 01, 2015

Matthew Rimmer, ‘The Trans-Pacific Partnership, Copyright Law, and Education’, The Advocate, NTEU, Vol. 22 (3) November 2015, http://www.nteu.org.au/defendourunis/article/TPP,-copyright-law-and-education-(Advocate-22-03)-18134