New copyright proposal threatens right to parody, commentary, even reporting

Thinking of parodying a shitty Fox Studios film with your own YouTube video? Think again. In the latest leaked version of TPP (Trans-Pacific Partnership) trade agreement text, Fair Use is now under threat.

According to the website KEI, “copyright exceptions for ‘criticism, comment, news reporting, teaching, scholarship and research’ under a restrictive 3-step test, even in the areas where the Berne Convention and the TRIPS have different standards for exceptions.” A 3-step test for news, criticism and other commentary? Restrictive seems to be an understatement.

The TPP text makes clear that the US and Austrialian trade representatives are pursuing the restrictive provisions, and Peru and Singapore are more than happy to oblige.

Below is the paragraph of offending text:

Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]…

US/AU propose: With respect to this Article and Articles 5 and 6, each party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

This doesn’t necessarily mean that Fair Use has been usurped by US and Australian trade representatives, but it does mean the new TPP negotiations favor rights holders (Hollywood studios, record labels, etc.).

EFF took exception to the leaked text, saying, “It is critical to ensure that any language introducing the 3-step test ensure that the test is not narrowly construed and also ensure that it is without prejudice to other existing limitations and exceptions that fall outside this test and that are included in international conventions.”

The next round of negotiations is set to take place in Leesburg, Virginia from September 6-15, 2012. According to EFF, in this round “the public can participate through an accreditation process that allows Direct Stakeholder Engagement—an opportunity to speak directly and one-on-one with negotiators, raise questions, and share views and briefings.”

Hopefully the Direct Stakeholder Engagement will have some positive effect and tip the scales back in favor of Fair Use.