Open Letter to TPP negotiators - reject an extended copyright term

The ADA has joined with over 30 other organisations signing an open letter urging countries negotiating the Trans Pacific Partnership (TPP) to reject proposals for extended copyright terms.  Signatories to the letter include international organisations such as creative commons and Wikimedia, through to libraries, educational organisations, consumer groups and internet groups.  Australian signatories include the Australian Library and Information Association (ALIA), Council of Australian University Librarians (CAUL), Electronic Frontiers Australia (EFA) and the Australian Libraries Copyright Committee (ALCC).

This week negotiators from 12 countries are meeting in Ottawa, Canada for another round of negotiations on the TPP. The details are secret, however leaked negotiating text of the intellectual property chapter of the agreement has revealed proposals extending copyright terms are on the table. Currently under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) countries wishing to be members of the WTO must grant copyright protection to authors for the life of the author plus 50 years. The TPP negotiators are considering proposals to extend that protection to life plus 70 years, and other proposals that go even further.

Extending the term of copyright keeps works out of the public domain, redistributes revenue to large copyright holding corporations unfairly, and exacerbates the problems of orphan works. These impacts reduce the social, cultural and economic benefits that societies can derive from creative work, and should be resisted.

Australia has direct experience of these impacts due to the Australian-US Free Trade Agreement (AUSFTA), signed in 2004. Under AUSFTA Australia agreed to make a number of changes to copyright law, including an extension of copyright terms to life plus 70 years. Consideration of the evidence from Australia should serve as a warning to other countries, and also provides motivation for Australia to resist the inclusion of the term in a multilateral trade agreement that will make unwinding the provisions harder in the future.

On the economic side the Australian Productivity Commission labelled the copyright obligations in AUSFTA ‘A net loss’ in a research report published in 2010, estimating that the copyright extension alone cost up to $88 million per year in revenue flowing overseas. A PwC report published in 2012 established that Australia is a net importer of cultural works, so it is inevitable that on balance increased royalties resulting from an extension of copyright terms will be leaving the country.

Orphan works, where the copyright owner cannot be determined, can contribute to research, education, culture and to the creation of further works, but their uncertain copyright status means it is often too risky for a business or institution to use them, and so that value remains locked away. In 2012 the Australian Attorney-General's Department published a review into orphan works and established that there are large numbers of orphan works in Australia, and that:

'The extension of the term of copyright by 20 years has also extended the term of copyright in orphan works, and therefore the quantity of orphan works. An additional difficulty with older orphan works may be determining whether or not copyright still subsists where the date or circumstances of its making are unclear'

Extending the term of copyright restricts the potential value of orphan works for longer, to the overall detriment of society. They also present a particular problem for cultural institutions, who may be unable to fulfil their mission to preserve and present material because they cannot be certain that their treatment of orphan works will not expose them to adverse outcomes. They cannot be included in projects to digitise material, limiting access in a way that is ill suited to the modern connected world.

This problem is further exacerbated by provisions that restrict countries from requiring formalities to qualify for the extended term. Restrictions on formalities mean that no registration can be required to provide extended protections, which otherwise could reduce the risk of works becoming orphaned and ameliorate some of the worst impacts of term extension.

Awareness of these issues brought the organisations which signed the letter opposing an extension of copyright terms to life plus 70 years together. There are also proposals on the table at the TPP negotiations that would make the situation even worse. A proposal by Mexico to extend copyright term to life plus 100 years and one by the US for a copyright term of 95 years for corporate owned works would have even greater negative impacts. These proposals would benefit a small number of multinational copyright-holding companies to the detriment of the citizens of countries where they are enacted, and would make the situation in Australia worse.

The ADA continues to believe that a secretly negotiated trade deal is not the right place for these copyright provisions, and that Australia's experience under AUSFTA should persuade negotiating countries to reject any extension of copyright terms.

- written by Andrew Reid

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