As Ministers gather to nut out the last details of the Trans-Pacific Partnership (TPP) concerned creators are waiting to see what impact the decision has on their ability to use, reuse and create.

Worries about the extensive intellectual property chapter have mainly focussed on health. But the chapter also covers copyright, proposing ratcheting up the copyright term in the six countries that still hold to the international norm of life of the author plus 50 years.

Australia already extended its copyright term to life of the author plus 70 years as part of the Australian –US free trade agreement.  This move has meant that no new works have entered the public domain for 10 years, and none will for another decade. The copyright term extension was estimated to cost $88 million per year and looks likely to have decreased the works available to the Australian public.

The term extension disproportionately affects countries like Australia that have relatively narrow and limited exceptions to copyright.  Unlike the USA whose ‘fair use’ exception has allowed the digitisation of library collections, the invention of search engines and appropriation art, Australian creators, industries and cultural institutions are more constrained. A recent movie that explores the consequences of using 2 bars of a children’s song for Australian band Men at Work, shows the narrow ability of Australian artists to build on what has gone before.  Meanwhile even librarians are fed up, trying to cook their way to copyright reform.

You might wonder why Australia, and other countries faced with the ratcheting of copyright terms don’t just introduce fair use.  That was certainly the recommendation of the Australian Law Reform Commission in its recent report.  But here the TPP may have a nasty surprise, hidden in the investment chapter. 

Investor State Dispute Settlement (ISDS) is a system whereby companies can sue governments for, amongst other things, ‘expropriations’ of their property.  This could include reductions to the value of intellectual property from new copyright exceptions.  While the latest leak of the investment chapter suggests that there is a carve-out for IP claims under ISDS, this is only as long as the laws are in compliance with the IP chapter.  The IP chapter states that all exceptions must comply with the ‘three step test’. While it is generally accepted that fair use complies with the three step test, no country with fair use has ever been directly challenged. 

The result is that governments trying to introduce new exceptions, such as fair use, may face legal challenge.  Even if the challenge is unlikely to win, the mere threat may be enough to water down proposals. 

Australian copyright law is already broken. The TPP has the potential to cement in an overly rigid system that is unable to keep pace with changes in technology and business models. We need to see what’s in the text, and we need to see it now.