Urgent Appeal on TPP Intellectual Property Provisions

Urgent Appeal on TPP Copyright Provisions

There have been reports that among negotiating parties of the TPP (Trans-Pacific Partnership), the biggest bone of contention has been the provisions on intellectual property rights, such as copyright. The leaked U.S. proposal indicates there might be provisions that could severely hinder the development of information society, and many groups and experts, both domestic and international, have been expressing their concerns on this issue.

TPP has long been criticized for its secretive nature, and the secrecy surrounding it has only worsened recently, at this phase of the negotiation which is said to be near the end stakeholder briefing sessions held by the government hardly go beyond explanations that they cannot give any detailed explanations. Meanwhile, notable domestic media has reported many times that Japanese officials would make concessions to U.S. demands on such issues as “extension of copyright protection terms by a great length,” and “making copyright infringements prosecutable without the rightsholder’s criminal accusation.”

We are deeply concerned about this situation in which important decisions for our nation’s culture and society are being made behind closed doors, and that people will only be shown a final text when it is virtually impossible to amend due to the bundled nature of the proposal spanning the 21 areas.

It is generally accepted that ill-conceived copyright term extension dramatically increases the number of “orphan works” copyright-protected works for which rightsholders are positively indeterminate or not contactable. Orphan works are a serious impediment to digitization, and because of this, the possibility of a shortened term has been seriously discussed even in the U.S. Respected empirical research have also demonstrated that making the term extremely long does not even bring any meaningful revenue to most of the author’s heirs, while increasing unusable works due to the difficulty of rights clearance, and raising the complication for new creation based on old works. In the Japanese context, the term extension will also result in the fixation or even increase in the trade deficit of copyright, hence the criticism that this is contrary to the idea of founding our nation on intellectual properties.

Making copyright violation prosecutable and punishable without the victim’s criminal accusation bears the risk of chilling the tolerated use, the kind of use that is, strictly speaking, illegal, but is overlooked unless substantial harm is caused to the rightsholders. This means police and prosecutors, not rightsholders, will gain procedural initiative, therefore increasing the possibility of third-party accusation leading to enforcement actions and prosecution on such non-malicious uses. It will have strong chilling effects on many areas of creativity such as parody and other derivative works that underpin the richness of Cool Japan, or various new Internet businesses, research and development within corporations, practices in delivery of educational and welfare services, digital archives, republishing of out-of-print books, screening of revived films just to name a few.

Additionally, there may be a provision to introduce statutory damages, known as a major cause behind increases in the number of copyright lawsuits and damages awarded, and has led to high litigation costs in the U.S. Copyright trolls file some of these lawsuits against corporations and individuals, where the trolls demand large amounts of damages from their victims. However, since the negotiation process is sealed under such secrecy, we are unable to know how these and other issues are discussed.

Many of these provisions were discussed closely in the past in Japan, and were not ultimately introduced because of their highly controversial nature. Japan does not have a provision for general exceptions like fair use, which is said to be the enabler for businesses, archives, and parody works in the U.S. Its business ecosystem is still quite different from the U.S., which can be characterized as lawyer-driven, with lawsuit-based resolution of disputes. Half-cooked introduction of the U.S.-style rules may end up draining energy from Japan and in a disastrous confusion.

Also we should note that treaties have priority over domestic laws. Not even the Diet can change the law once such provisions are mandated as a part of multilateral, multi-sector trade agreement—even if they would like to revisit the issue in light of the social reality after several years. If we are placed under such constraints in the domain of information rules, which are exposed to rapid changes, there is a great risk of killing competitiveness and cultural richness of our country. This goes against Intellectual Property Strategic Program from the Cabinet, and Proposal from the Research Committee on Intellectual Properties Strategy from Liberal Democratic Party, creating a huge negative burden to future generations.

The most important part of international negotiations is its last phase, when the likely results become seemingly clear. In order not to waste government efforts due to the chaos arising at the time of Dietary approval, we now strongly urge that the intellectual property provisions where participating countries have conflicting interests be removed from the final proposal—where only the most uncontroversial areas such as certain anti-piracy measures be left—and sufficient disclosure of information be made at a stage when the agreement can still accept amendments to its text.

Japan Forum for the Intellectual Property Aspects and Transparency of TPP
[ Creative Commons Japan http://creativecommons.jp/
thinkC (Forum for Copyright Term Extension) http://thinkcopyright.org
MIAU (Movements for the Internet Active Users) http://miau.jp/]

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