A draft of the copyright chapter of the negotiating text for the Trans-Pacific Partnership trade agreement (TPPA), leaked to the public early this month, shows New Zealand holding the line for permitted uses of copyright under the treaty, in accordance with domestic legislation.
Australia, however, appears to be taking a line more in sympathy with the US, which wants to restrict such permitted uses more strictly than current treaties.
Permitted-use exceptions for copyright material, known in the US as "fair dealing", cover "criticism, comment, news reporting, teaching, scholarship and research" and similar uses.
"With respect to this Article [Article 4 on copyright] 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," says the text proposed by the US. This is labelled Paragraph 1 of the pertinent section.
The previously promoted commitment by US negotiators to "strive for an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes" is now put as Paragraph 2 in the proposed US text and made "subject to and consistent with paragraph 1".
In other words the conditions in paragraph 1 would limit the permitted use undertakings and the commitment to balance as US negotiators would draft the text.
A note below these paragraphs records an attempt by NZ, Australian and other negotiators to prevent such a restriction: "NZ/CL/MY/BN/VN [New Zealand, Chile, Malaysia, Brunei and Vietnam] propose; AU/US [Australia and the US] oppose [that] each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to."
This shows Australia siding with the US in opposition to a proposal by New Zealand and others that domestic law in terms of permitted uses should be respected.
New Zealand's Copyright Act has a number of "permitted use" exceptions, including an exception for "transient reproduction" - the generation of short-lived copies, essential to the operation of the internet; US interests are rumoured to be trying to erode such protection and demand fees be paid to rights owners for such reproduction.
New Zealand also has a hard-fought exception allowing technological protection mechanisms to be circumvented to allow permitted use to be made of a work, or access to be made to a non-copyright work which happens to be on the same physical medium as copyrighted works with a protection mechanism imposed on them all. If the US opinion prevails, the use of this circumvention could be imperilled.
Ironically, US law has an exception for the use of parts of a work to parody or satirise it, which NZ law still lacks.
Negotiation of the TPPA is kept confidential, with the NZ government, particularly Trade Minister Tim Groser, refusing to release any draft passages unless and until the negotiators of other countries all agree to a release.
Local interested parties with reservations about TPPA, particularly its intellectual-property provisions have, however, been allowed to make presentations to the negotiators; NZ representation of this kind was particularly strong in the rounds of negotiation in Vietnam and Melbourne.