Trans-Pacific Partnership to Increase Copyright Term in Six Nations

[HarryT]

Originally Posted by SteveEisenberg

The US government today released Trans-Pacific Partnership text with copyright term language identical to that previously Wikileaked and discussed in this thread:

https://ustr.gov/sites/default/files...l-Property.pdf

I previously hoped that New Zealand being granted a somewhat broader public domain deal than Canada was an oversight, but it is true.

As I read it, a large number of eBooks today available, on Canadian public domain sites, will have to be removed for up to 20 years. If someone can find a way to twist the wording otherwise, please let us know it.

Steve, section 18.10 of the document states:

Unless provided in Article 18.64 (Application of Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement), a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement for that Party has fallen into the public domain in its territory.

That seems to me to explicitly state that what's in the public domain will stay there. How do you interpret it as saying the opposite?

[Greg Anos]

I won't have time to read and analyse this until this weekend.

But I will do so. In a week or two I will post another sticky of this treaty...

[SteveEisenberg]

Originally Posted by HarryT

Steve, section 18.10 of the document states:
. . .
That seems to me to explicitly state that what's in the public domain will stay there. How do you interpret it as saying the opposite?

Harry, I focused on Article 18.63 and missed that. I believe you are correct. And that makes the use of the word "retroactive" in the following web pages also mistaken:

http://boingboing.net/2015/10/06/nz-...on-tpp-co.html

http://www.cnet.com/news/spotlight-o...c-partnership/

Can you, or another poster, explain this from Article 18.83 Paragraph 4:

With regard to obligations subject to a transition period, a Party shall fully implement its obligations under the provisions of this Chapter no later than the expiration of the relevant time period specified below, which begins on the date of entry into force of the Agreement for that Party . . .

In the case of New Zealand, with respect to Article 18.63 (Term of Protection for Copyright and Related Rights), eight years. Except that from the date of entry into force of the Agreement for New Zealand, New Zealand shall provide that the term of protection for a work, performance or phonogram that would, during that eight years, have expired under the term that was provided in New Zealand law before the entry into force of this Agreement, instead expires 60 years from the relevant date in Article 18.63 that is the basis for calculating the term of protection under this Agreement.

I can think of a way of interpreting the above that makes no sense. This is the idea that during the eight years after coming into effect, New Zealand is life + 60 for books newly coming into the public domain. But all those books are already New Zealand public domain due to the life + 50 standard. It would take 11 years, not 8, for Life + 60 to bring something into the public domain in a previously Life + 50 country like New Zealand. Life + 60, for 8 years, therefore seems meaningless.

On the theory that they don't put in meaningless paragraphs, what alternate construction is possible?

This next part of 18.83 also confuses me because it seemingly gives to New Zealand, alone, the same right given, in 18.10, to all six countries that are having their copyright term increased:

The Parties understand that, in applying Article 18.10 (Application of Chapter to Existing Subject Matter and Prior Acts), New Zealand shall not be required to restore or extend the term of protection to the works, performances and phonograms with a term provided pursuant to the previous sentence, once these works, performances and phonograms fall into the public domain in its territory.

Again, my question is: What construction would make this paragraph meaningful?

[GeoffR]

Originally Posted by SteveEisenberg

Can you, or another poster, explain this from Article 18.83 Paragraph 4:

The way I read it:

Most countries will go to life+70 immediately, so for example Canada which is currently life+50 there will have a 20-year gap where nothing falls into the public domain. But New Zealand has a transition period of 8 years where it will be life+60, so instead of a 20-year gap there will be a 10 year gap, followed by 8 years where some life+60 stuff will fall into the public domain, then a 2-year gap before life+70 stuff starts to fall into the public domain.

The Parties understand that, in applying Article 18.10 (Application of Chapter to Existing Subject Matter and Prior Acts), New Zealand shall not be required to restore or extend the term of protection to the works, performances and phonograms with a term provided pursuant to the previous sentence, once these works, performances and phonograms fall into the public domain in its territory.

I think the above clause is needed to ensure that the stuff which falls into the public domain under the transitional life+60 rule will not have to be removed from the public domain again once full life+70 rules take effect.

[HarryT]

That's my interpretation too, Geoff. Nothing gets removed from the public domain.

[SteveEisenberg]

Originally Posted by GeoffR

The way I read it:

Assuming ratification completion in 2016, is this consistent with your reading for most individually authored titles:

New Zealand public domain day occurs, as previously planned, on January 1, 2016.

From 2017 through 2026, New Zealand gets no significant public domain day. This is mostly because of the TPP, but not having much in the way of a rule of the shorter term is another factor.

The next New Zealand public domain day, after that gap, is January 1, 2027, then occurring annually up to, and including, 2034.

Then there is a second gap, with no public domain day in 2035 or 2036.

Significant public domain days resume on January 1, 2037 and henceforth follow Life + 70 rules.

Contrast this with Vietnam, which is granted a simple five year delay in Article 18.83 Paragraph 4(f). There, public domain day will occur, as previously planned, up to and including January 1, 2021. Then, Vietnamese, as I read it, have no public domain day (except maybe for rule of the shorter term situations) until January 1, 2037.

Why should any mobile reader, even in New Zealand or Vietnam, care? New Zealand's population is probably too low to support the substantial volunteer proofreading community needed to ramp up a local Project Gutenberg in 2027. As for purchased eBooks, I'd think that, in New Zealand and Vietnam, they are mostly purchased from outside vendors – think www.amazon.com.au – who are unlikely to lower a price just because the eBook is public domain in a secondary market. So, from a practical standpoint, TPP copyright leniencies granted to New Zealand, Vietnam, and Malaysia may not much matter for eBooks.

Nonetheless, I have three reasons to be interested. One is to improve the truthfulness of statements I make in posts here. A second is to understand whether there really are TPP book copyright absurdities worth exposing. The third is to gain skill in parsing opaque language we may see in likely upcoming attempts to limit public domain days scheduled, for the US, starting January 1, 2019.

[pwalker8]

It's being reported by some people who have studied the agreement that the Intellectual properties rules which include copyright, are subject to arbitration rather than the local court system. I find that troubling.

https://www.techdirt.com/articles/20...ally-bad.shtml

[GeoffR]

Originally Posted by SteveEisenberg

Assuming ratification completion in 2016, is this consistent with your reading for most individually authored titles:

New Zealand public domain day occurs, as previously planned, on January 1, 2016.

From 2017 through 2026, New Zealand gets no significant public domain day. This is mostly because of the TPP, but not having much in the way of a rule of the shorter term is another factor.

The next New Zealand public domain day, after that gap, is January 1, 2027, then occurring annually up to, and including, 2034.

Then there is a second gap, with no public domain day in 2035 or 2036.

Significant public domain days resume on January 1, 2037 and henceforth follow Life + 70 rules.

I forgot to allow that the works falling into public domain under the life+70 rule would at first already be there under the transitional life+60 rule. So after ratification there would be a 10 year gap, then 8 years of works entering under the life+60 transition period, then another 10 years before the first new works entered under life+70.

Edit: Perhaps a simpler way to think of it is: those works that fall into public domain in the first 8 years under the life+70 rule in Canada, will fall into the New Zealand public domain 10 years earlier.

Why should any mobile reader, even in New Zealand or Vietnam, care? New Zealand's population is probably too low to support the substantial volunteer proofreading community needed to ramp up a local Project Gutenberg in 2027. As for purchased eBooks, I'd think that, in New Zealand and Vietnam, they are mostly purchased from outside vendors – think www.amazon.com.au – who are unlikely to lower a price just because the eBook is public domain in a secondary market. So, from a practical standpoint, TPP copyright leniencies granted to New Zealand, Vietnam, and Malaysia may not much matter for eBooks.

There are ebooks sold on Amazon, Kobo, etc. which are georestricted so that they only show up when buying from a country where they are in the public domain. So for example if I visit Kobo from a US IP address then I might only see the high-priced big-publisher edition, but if I visit from a New Zealand IP address then I might also see other low-priced or free editions that make use of public domain. The publisher might not bother to change their price for New Zealand, but they will surely lose sales to the public domain-based editions if they don't.

[SteveEisenberg]

Originally Posted by GeoffR

. . . .after ratification there would be a 10 year gap, then 8 years of works entering under the life+60 transition period, then another 10 years before the first new works entered under life+70.

Sounds right.

My root mistake may have been failing to see that if you go from Life + 50 to Life + 70, there have to be twenty years where there is no public domain day for books subject to Life + copyright. Delaying some of those twenty public-domainless years, as the agreement does (in 3 different patterns!) for New Zealand, Malaysia, and Vietnam doesn't mean that those countries got a better or worse deal than than the three currently Life + 50 countries (Canada, Japan, and Brunei) whose readers will face all twenty bad years immediately on ratification.

(EDITED: Rereading, I think that the first sentence of the paragraph immediately above is true. But does the claim in the next sentence follow from the first?)

It would be interesting to know why the various countries wound up with the individualized terms they did.

Originally Posted by pwalker8

It's being reported by some people who have studied the agreement that the Intellectual properties rules which include copyright, are subject to arbitration rather than the local court system. I find that troubling.

This gets to whether or not the 6,000 page agreement, taken as a whole, is worth ratifying. Since it took me days to understand just one of the pages (and it's possible I'm still not there), this is daunting. So maybe I have to defer to expert opinion. But, the expert opinion you linked to in #67, with its repeated use of the word "massive" in describing flaws, was too fevered for me to accord it surface credibility. I find this kind of sentence particularly dubious:

This is much, much worse than many of the things we feared.

Of course, he could be right. But it could also be that the author's quick read of the 6,000 pages was influenced by preconceptions.

Here is pro and con that has a better feel to me:

http://www.csmonitor.com/World/Passc...ore-you-decide

http://www.commondreams.org/views/20...imple-yes-vote

[pwalker8]

Originally Posted by SteveEisenberg

Sounds right.

My root mistake may have been failing to see that if you go from Life + 50 to Life + 70, there have to be twenty years where there is no public domain day for books subject to Life + copyright. Delaying some of those twenty public-domainless years, as the agreement does (in 3 different patterns!) for New Zealand, Malaysia, and Vietnam doesn't mean that those countries got a better or worse deal than than the three currently Life + 50 countries (Canada, Japan, and Brunei) whose readers will face all twenty bad years immediately on ratification.

(EDITED: Rereading, I think that the first sentence of the paragraph immediately above is true. But does the claim in the next sentence follow from the first?)

It would be interesting to know why the various countries wound up with the individualized terms they did.



This gets to whether or not the 6,000 page agreement, taken as a whole, is worth ratifying. Since it took me days to understand just one of the pages (and it's possible I'm still not there), this is daunting. So maybe I have to defer to expert opinion. But, the expert opinion you linked to in #67, with its repeated use of the word "massive" in describing flaws, was too fevered for me to accord it surface credibility. I find this kind of sentence particularly dubious:



Of course, he could be right. But it could also be that the author's quick read of the 6,000 pages was influenced by preconceptions.

Here is pro and con that has a better feel to me:

http://www.csmonitor.com/World/Passc...ore-you-decide

http://www.commondreams.org/views/20...imple-yes-vote

Of course, the issue is why would you pass a 6000 page treaty that is difficult to understand, especially after it had been negotiated in secret over the space of years? That never turns out well.

[Greg Anos]

What I find particularly disturbing is the open-endedness of the copyright portion. Everything is marked with "not less than" rather than "equal to".

I suspect that over the years, no more public domain days will be seen for any (or at most, few) of the signatories. Quietly, governments will be bri---err, lobbied into extending the copyright length.

[HarryT]

Originally Posted by Ralph Sir Edward

What I find particularly disturbing is the open-endedness of the copyright portion. Everything is marked with "not less than" rather than "equal to".

That's equally true of the Berne convention, which specifically states that signatories are free to use however long a copyright term they wish, provided it's not shorter than life+50 years, but, despite that, in the overwhelming majority of countries which are signatories to the Berne Convention, new material enters the public domain every year.

[Greg Anos]

Originally Posted by HarryT

That's equally true of the Berne convention, which specifically states that signatories are free to use however long a copyright term they wish, provided it's not shorter than life+50 years, but, despite that, in the overwhelming majority of countries which are signatories to the Berne Convention, new material enters the public domain every year.

And why have Berne terms been extended? Not for the benefit of the creators (they're dead and no longer caring), but for the copyright middlemen. And they want perpetual copyright. So there will never be a hard limit on copyright, but something that can be extended, over and over

[HarryT]

Originally Posted by Ralph Sir Edward

And why have Berne terms been extended? Not for the benefit of the creators (they're dead and no longer caring), but for the copyright middlemen. And they want perpetual copyright. So there will never be a hard limit on copyright, but something that can be extended, over and over

But it hasn't been "extended over and over again". At least not in the vast majority of countries.

[Greg Anos]

Originally Posted by HarryT

But it hasn't been "extended over and over again". At least not in the vast majority of countries.

Why have they been extended at all? As the old movie line said..."Follow the money..."