RLI 285  20 RESEARCH LIBRARY ISSUES: A REPORT FROM ARL, CNI, AND SPARC 2015 term in the future. Many in the US acknowledge that the present term is too long and Maria Pallante, Register of Copyrights, has suggested reintroduction of formalities for the last 20 years of copyright protection. However, changing the term of protection in US copyright law would violate the TPP if parties agree to a period of life plus 70 years in the final text. The US would also face difficulty in requiring formalities for the last 20 years of protection because the latest TPP leak shows a new provision that parties have agreed to prohibiting formalities. Another controversial US proposal involved highly prescriptive provisions on technological protection measures (TPMs) that could prevent reform on this issue. The US proposal would have made the act of circumvention of a TPM an independent cause of action with no nexus to copyright infringement and used a narrow and closed set of limitations and exceptions to the circumvention prohibition. The US proposal also included a three-year rulemaking procedure for additional limitations and exceptions, modeled after Section 1201 of the Digital Millennium Copyright Act (DMCA). The new limitations and exceptions are valid only for a three-year period, then must be renewed. Under this formulation, permanent limitations and exceptions could not be added without violating the TPP or forcing renegotiation of these rules with all TPP parties. Thus, as with proposals or efforts to address the lengthy copyright terms in the US, Congress could not enact a permanent cell-phone unlocking exemption12 or other permanent exceptions, such as to permit the visually impaired to overcome TPMs designed to limit access on e-readers, without disregarding its obligations to the other TPP parties. However, in the most recent leak of draft TPP text, it appears that the US has dropped its proposed text on anti-circumvention measures and parties have agreed to language that does not require a three-year rulemaking process. The October 2014 leaked text would allow new permanent limitations and exceptions allowing for circumvention of TPMs, though it may still be difficult to create a general permanent exception allowing for circumvention of any non-infringing use due to language that seems to permit new limitations and exceptions only on a case-by-case basis. While some of the proposals in the TPP could negatively affect the public domain and access to information, a significant and positive development occurred in July 2012 when the US introduced language on copyright limitations and exceptions. Prior free trade agreements generally included specific rights and protections for rightsholders, but failed to address limitations and exceptions. Based on the most recent leaked text, it appears that all TPP parties have agreed to language directing parties to “endeavor to achieve an appropriate balance” through limitations and exceptions, “including those for the digital environment, giving due consideration to legitimate purposes such as, but limited to, criticism, comment, news reporting, teaching, scholarship [or] research.” This language is derived from the US’s fair use statute. Additionally, the most recent leaked text reveals that parties have now agreed to language applying limitations and exceptions for persons who are blind, visually impaired, or otherwise print disabled and also contains a footnote referencing the Marrakesh Treaty. The language on limitations and exceptions is a welcome inclusion that ensures that the TPP will not undermine fair use, a critical “safety valve” in copyright law, and shows support for the Marrakesh Treaty.
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