Last Friday saw the latest in a trickle of leaks of the negotiating text from the Trans-Pacific Partnership Agreement. The subject of the latest leak is the proposed language on limitations and exceptions in the controversial intellectual property chapter of the agreement. In early July, in the lead up to the latest round of negotiations in San Diego, the USTR announced that the US delegation would be introducing such language, with a view to promoting balance in TPPA countries’ copyright regimes. At the time civil society groups, including the ADA and ALCC, expressed their cautious optimism. We were pleased to see that discussion of exceptions and limitations was to be explicitly included in TPPA negotiations, recognising this as an opportunity to re-visit interpretation of the three-step test and to ensure that any interpretation contains sufficient flexibility and balance to enable countries to adopt exceptions befitting the digital age. And yet, cautious because we hadn't actually seen the text itself - no-one outside of TPPA negotiators and cleared advisors have access to it. Language on exceptions has the potential to cut both ways: to facilitate or restrict the creation of exceptions and limitations in domestic law. While the text remained secret, we couldn't be sure that the proposal would not be used to restrict TPPA countries’ ability to enact new domestic limitations and exceptions under the agreement.

Unfortunately, these concerns proved justified with the leak of draft text late Friday. This text appears to counter the promotion of workable limitations and exceptions on copyright. The proposal put forward by the US (and seconded by Australia) pushes the introduction of the ‘three-step test’ into the implementation of all limitations and exceptions. This is a measure that other IP treaties, such as the Berne Convention and the TRIPS Agreement do not impose.

In an op-ed on the leaked text, published on Monday, ADA Board Member Kim Weatherall described the move as a ‘bait-and-switch’, where the USTR drew the public in with talk of ‘promoting balance’ by placing exceptions on the table. What the text actually proposes is weak aspirational language encouraging TPPA countries to ‘seek balance’ in their copyright regimes, while at the same time imposing the requirement that TPPA signatories must,

... confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.

The imposition of these requirements from the three-step test over this wider range of exceptions places at risk the flexibility of TPPA countries to implement limitations and exceptions to copyright in the national interest. 

In light of the two copyright inquiries underway in Australia, it is worrying to consider the extent to which the proposed text could limit the extent to which recommendations from the inquiries could be implemented into our domestic law. It is worthwhile considering at this point, however, that this is still just draft text. EFF has reported that this text was only introduced at the end of the last negotiating round, so there is arguably scope for broader language on limitations and exceptions to make its way into the agreement, such as the proposal by New Zealand, Chile, Malaysia, Brunei and Vietnam:

1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.

Or even the provision on exceptions contained in the Australia-US Free Trade Agreement:

(c) unless otherwise specifically provided in this Chapter, nothing in this Article shall be construed as reducing or extending the scope of applicability of the limitations and exceptions permitted under the agreements referred to in Articles 17.1.2 and 17.1.4 and the TRIPS Agreement.

In the lead up to the next round of negotiations in September, it will be important to make the case to Australian negotiators for the inclusion in the TPPA of language that is positive towards balanced and flexible exceptions and limitations, and enables the current Inquiries to proceed without restrictions. Even more importantly, this leak emphasises yet again the importance of transparency in negotiations of agreements that involve intellectual property considerations. International agreements such as ACTA and the TPPA encroach upon personal freedoms that should only be regulated through a process that is open and by legislatures that are accountable for their decisions.