EFF has previously written about various troubling provisions of the Trans-Pacific Partnership Agreement (TPP) that is being negotiated under wraps. One other major concern is that TPP seeks to propagate the excessive copyright terms currently found in American copyright legislation, and will become yet another tool of the second enclosure movement: "the enclosure of the intangible commons of the mind."

These terms are detrimental to creativity and innovation and only serve to benefit the major record and movie production companies who lobbied for them in the U.S. Now starting with the Pacific region, these exorbitant counterproductive terms could be imposed on countries with more progressive copyright laws through the force of the TPP. Making these terms part of trade agreements is part of a general move towards “forum shifting” and “policy laundering” of the IP policy discussion away from places where there is at least some requirement for public input and transparency, such as Congress.

There are many problematic issues around enacting such long copyright terms into an international agreement. Primarily, it would force everyone living in a TPP signatory country to pay a heavy price in continued royalties for content. For example, one scholar estimated that the copyright extension has resulted in Australians sending an extra $88 million per year in royalties overseas.1 This is particularly troubling because international law has been exploited to escalate the scope of copyright. The incorporation of international copyright obligations into national law does not focus on whether the protection is “economically, culturally, or socially desirable.” Rather, it presents new lobbying opportunities for the entertainment industry that can result in broader copyright regimes than required by the international obligations, which in turn could be used back home to demand matching legislation.

Contrary to economic and legal studies focused on the importance of a rich commons for innovation and creativity, and contrary to recommendations such as those of European-based Communia Association, the TPP seeks to extend the internationally agreed copyright term far beyond what is required by international standards set out in the Berne Convention (WIPO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPS. According to a leaked IP chapter of the agreement [pdf], the United States' proposal would require countries to enact much longer copyright terms than exist in most of the signatory countries.

Under this proposal, if the copyright holder is a natural person (an individual), the copyright term would extend to the lifetime of the creator plus 70 years after her death as a minimum. On average, this means that a work could only enter the public domain after almost 140 years.2 This provision in particular surpasses restrictions as laid out in the US Copyright Act that sets the 70 years as a ceiling,3 whereas TPP sets the 70 years term as the minimum requirement. In the case of published works whose copyrights are owned by corporations, the term of protection would extend to 95 years from the first publication. Finally, corporate works that were not published within 25 years of its creation, are protected the term of protection is 120 years from the date of the creation.

This provision expands the terms of the controversial US Sonny Bono Copyright Term Extension Act (or the “Mickey Mouse Act” as it was called due to Disney’s heavy lobbying) to countries of the Pacific region. New Zealand, a party to the TPP negotiations, currently has a copyright term of the author’s life and an additional 50 years for literary works. Another TPP member, Malaysia, has a copyright term of life plus 50 years for “literary, musical or artistic work.” Canada, which is just entering negotiations, has an even shorter term of just 50 years for fixed sound recordings. Pursuant to the current TPP terms [pdf], all of these countries would be required to extend their terms and grant companies lengthy exclusive rights to works for no empirical reason.

The common justification for granting restrictive monopoly rights in copyright law is to provide an “incentive” for people to generate material that can be enjoyed by the public. But economists and law scholars who have studied this rationale have found that “the optimal length of copyright is at most seven years.”4 Long copyright terms are a poor recipe for compensating creators, who generally receive low royalties from their works.5 And yet, the strong copyright lobby prevents any recommendation to reduce the presently excessive terms, attacking any attempt to speak for the public domain or for users rights and dazzles politicians with nonsensical “copyright math”.

Copyright law gives rightsholders exclusive rights to use and profit from creative works, and, in theory, secure economic rights to the creator for their efforts. In most cases however, this right has been abused in a way that deprives the public of valuable culture and knowledge. Lengthy copyright terms are simply not needed to incentivize creativity. Not only is this most plainly obvious where terms extend past the life of an author, the public domain is a necessary source from which authors can learn and create. It is the fueling source of our shared culture, and it recognizes that we are always “building on the past”. Significantly, “[t]he more we tie up past works in ownership rights that do not convey a public benefit through greater incentive for the creation of new works, the more we restrict the ability of current creators to build on and expand the cultural contributions of their forebears.”6

As proposed by Boyle [pdf - pg 51], “our intellectual property system should be audited like any other government subsidy to make sure that we are getting what we pay for, and not paying too much for what we get.”

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If you're in the US, please call on your representatives to oppose Fast Track for TPP and other undemocratic trade deals with harmful digital policies.

Additional resources:

Professor Yochai Benkler on how copyright’s “enclosure movement” poses a risk to “the First Amendment commitment to attain a diverse, decentralized marketplace of ideas.”

James Boyle, The Public Domain

TED Talk by Rob Reid "The $8 Billion iPod"

• 1. “The net effect is that Australia could eventually pay 25 per cent more per year in net royalty payments, not just to US copyright holders, but to all copyright holders, since this provision is not preferential. This could amount to up to $88 million per year, or up to $700 million in net present value terms. And this is a pure transfer overseas, and hence pure cost to Australia.” Report: The Australia-US Free Trade Agreement - An Assessment Dr Philippa Dee, APSEG, Australian National University p. 23 (box) and 33 (2004). http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=freetrade_ctte/rel_links/index.htm
• 2. Based on 2010 data of U.S. and worldwide life expectancy (Source: World Bank).
• 3. Jodie Griffin (2011) Inconsistencies Between the TPP and U.S. Law: http://www.scribd.com/doc/87356010/Inconsistencies-Between-the-TPP-and-U-S-Law (PDF)
• 4. Gowers Review of Intellectual Property, p. 50 (Dec. 2006) citing Growth and Intellectual Property, Boldrin M. and Levine D., 2005.
• 5. For instance, in regard to performers rights, the Cambridge University Centre for Intellectual Property and Information Law has reported that the benefits of “ any extended term would go to record companies rather than performers: either because the record company already owns the copyright or because the performer will, as a standard term of a recording agreement, have purported to assign any extended term that might be created to the copyright holder.” thus questioning whom is the actual beneficiary of such expansion.
• 6. Dennis S. Karjala, Opposing Copyright Extension, available at http://www.public.asu.edu/~dkarjala/commentary/term-of-protection.html.