Why the US back-flipped on copyright in global treaty

 

Opinion: Old arguments for ACTA and TPP no longer persuade.

The past six months has shown 2012 will be known as the year of significant changes in copyright policy and enforcement on the internet.

The "maximalist" approach often taken by copyright holders and lobbyists is not working the way it used to, as those in the negotiating seat have had to respond with a fairer, and less punitive approach to infringements.

Last week saw major defeats for anti-piracy groups in Europe and US.

The European Parliament resoundingly rejected ratification of the Anti-Counterfeiting Trade Agreement (ACTA) 478 to 39 votes, with 165 abstentions. The rejection provided a large indication that the treaty, in its current form, was no longer acceptable.

In the same week, the US contingent to Trans-Pacific Partnership (TPP) negotiations also signalled a major concession in copyright talks, by pressing for “an appropriate balance” between rights holders and their content users.

"For the first time in any US trade agreement", the US Trade Representative proclaimed, negotiators for the Government would propose new copyright provisions "consistent with the internationally-recognized '3-step test'".

The provision would "obligate Parties to seek to achieve an appropriate balance in their copyright systems" through exceptions to copyright, and limitations to application of rights for criticism, comment, news reporting, teaching, scholarship, and research.

In keeping with its covert approach, the exact wording of these provisions is yet to be unveiled. But its impact is clear.

While unexpected in the course of otherwise secret TPP negotiations, the move makes sense if the US wants to keep the agreement alive in the face of ACTA’s rejection in Europe.

The initial strategy proposed by US negotiators for the agreement was to consider watering down the contentious draft intellectual property chapter, which included new provisions for rights holders such as:

  • A new legal regime of ISP liability;
  • Requirements for ISPs to identify contravening internet users;
  • Establishment of damages for the rights holder;
  • Criminal enforcement for technological measures beyond global treaties, even when there is no copyright infringement;
  • Outlawing parallel trade in any copyrighted good; and
  • 95-year copyright minimum term for works for hire.

Plan B in the Dallas round was to incorporate ACTA provisions, as proposed by co-ACTA signatories Australia, NZ and Singapore.

However this provision was already shaky after signs of Europe's attitiude toward ACTA became clearer.

Australia’s position to opt for an ACTA-based TPP in the negotiations was also undermined by the Joint Select Committee on Treaties' recommendation to stall ACTA’s ratification in the last week of June.

With the current US administration set to suffer another set-back during talks, it needed a carrot to keep its IP chapter in place, if it seeks to conclude negotiations this year.

The welcome move from US negotiators also promotes a policy for more flexible copyright reforms as opposed to the maximalist agenda of the US movie and record industry.

Film and music industry bodies the MPAA and RIAA are reportedly furious with the announcement and latest draft of the TPP's intellectual property chapter. Since selected industry representatives get full access to the proposed text, it may well be that the new text contains some real policy shifts as well as a change in rhetoric, according to Public Knowledge’s Harold Feld.

In Australia, a mood to ease up on the anti-piracy rhetoric is also apparent with the recent High Court judgment on ISP liabilities, music investigation body MIPI dropping its “piracy investigations” title and, more positively, the open inquiry into copyright reform by the Australian Law Reform Commission.

The ubiquity of uses relying on the internet in many Western countries and the emergence of new business models such as Spotify, Hulu and iTunes suggests an acceptable balance of rights requires a more flexible approach than the Australian copyright regime currently allows for.

The original killer argument proposed by Australian representatives for signing and ratifying ACTA was that it would require no new laws.

The recent reversals, however, indicate that Australian business and communities were ready for new, more flexible laws that may have been otherwise encumbered by such treaties.

Copyright © iTnews.com.au . All rights reserved.


Why the US back-flipped on copyright in global treaty
Credit: salajean / Shutterstock.com
 
 
 
Top Stories
Frugality as a service: the Amazon story
Behind the scenes, Amazon Web Services is one lean machine.
 
Negotiating with the cloud email megavendors
[Blog post] Lessons from Woolworths’ mammoth migration.
 
Qld govt to move up to 149k staff onto Office 365
Australia's largest deployment, outside of the universities.
 
 
Credit: salajean / Shutterstock.com
Sign up to receive iTnews email bulletins
   FOLLOW US...

Latest VideosSee all videos »

The great data centre opportunity on Australia's doorstep
The great data centre opportunity on Australia's doorstep
Scott Noteboom, CEO of LitBit speaking at The Australian Data Centre Strategy Summit 2014 in the Gold Coast, Queensland, Australia. http://bit.ly/1qpxVfV Scott Noteboom is a data centre engineer who led builds for Apple and Yahoo in the earliest days of the cloud, and who now eyes Asia as the next big opportunity. Read more: http://www.itnews.com.au/News/372482,how-do-we-serve-three-billion-new-internet-users.aspx#ixzz2yNLmMG5C
Interview: Karl Maftoum, CIO, ACMA
Interview: Karl Maftoum, CIO, ACMA
To COTS or not to COTS? iTnews asks Karl Maftoum, CIO of the ACMA, at the CIO Strategy Summit.
Susan Sly: What is the Role of the CIO?
Susan Sly: What is the Role of the CIO?
AEMO chief information officer Susan Sly calls for more collaboration among Australia's technology leaders at the CIO Strategy Summit.
Meet the 2014 Finance CIO of the Year
Meet the 2014 Finance CIO of the Year
Credit Union Australia's David Gee awarded Finance CIO of the Year at the iTnews Benchmark Awards.
Meet the 2014 Retail CIO of the Year
Meet the 2014 Retail CIO of the Year
Damon Rees named Retail CIO of the Year at the iTnews Benchmark Awards for his work at Woolworths.
Robyn Elliott named the 2014 Utilities CIO of the Year
Robyn Elliott named the 2014 Utilities CIO of the Year
Acting Foxtel CIO David Marks accepts an iTnews Benchmark Award on behalf of Robyn Elliott.
Meet the 2014 Industrial CIO of the Year
Meet the 2014 Industrial CIO of the Year
Sanjay Mehta named Industrial CIO of the Year at the iTnews Benchmark Awards for his work at ConocoPhillips.
Meet the 2014 Healthcare CIO of the Year
Meet the 2014 Healthcare CIO of the Year
Greg Wells named Healthcare CIO of the Year at the iTnews Benchmark Awards for his work at NSW Health.
Meet the 2014 Education CIO of the Year
Meet the 2014 Education CIO of the Year
William Confalonieri named Healthcare CIO of the Year at the iTnews Benchmark Awards for his work at Deakin University.
Meet the 2014 Government CIO of the Year
Meet the 2014 Government CIO of the Year
David Johnson named Government CIO of the Year at the iTnews Benchmark Awards for his work at the Queensland Police Service.
Q and A: Coalition Broadband Policy
Q and A: Coalition Broadband Policy
Malcolm Turnbull and Tony Abbott discuss the Coalition's broadband policy with the press.
AFP scalps hacker 'leader' inside Australia's IT ranks.
AFP scalps hacker 'leader' inside Australia's IT ranks.
The Australian Federal Police have arrested a Sydney-based IT security professional for hacking a government website.
NBN Petition Delivered To Turnbull's Office
NBN Petition Delivered To Turnbull's Office
UTS CIO: IT teams of the future
UTS CIO: IT teams of the future
UTS CIO Chrissy Burns talks data.
New UTS Building: the IT within
New UTS Building: the IT within
The IT behind tomorrow's universities.
iTnews' NBN Panel
iTnews' NBN Panel
Is your enterprise NBN-ready?
Introducing iTnews Labs
Introducing iTnews Labs
See a timelapse of the iTnews labs being unboxed, set up and switched on! iTnews will produce independent testing of the latest enterprise software to hit the market after installing a purpose-built test lab in Sydney. Watch the installation of two DL380p servers, two HP StoreVirtual 4330 storage arrays and two HP ProCurve 2920 switches.
The True Cost of BYOD
The True Cost of BYOD
iTnews' Brett Winterford gives attendees of the first 'Touch Tomorrow' event in Brisbane a brief look at his research into enterprise mobility. What are the use cases and how can they be quantified? What price should you expect to pay for securing mobile access to corporate applications? What's coming around the corner?
Ghost clouds
Ghost clouds
ACMA chair Chris Chapman says there is uncertainty over whether certain classes of cloud service providers are caught by regulations.
Was the Snowden leak inevitable?
Was the Snowden leak inevitable?
Privacy experts David Vaile (UNSW Cyberspace Law and Policy Centre) and Craig Scroggie (CEO, NextDC) claim they were not surprised by the Snowden leaks about the NSA's PRISM program.
Latest Comments
Polls
Which bank is most likely to suffer an RBS-style meltdown?





   |   View results
ANZ
  21%
 
Bankwest
  9%
 
CommBank
  11%
 
National Australia Bank
  17%
 
Suncorp
  24%
 
Westpac
  19%
TOTAL VOTES: 1434

Vote