How the Trans-Pacific Partnership could impact Hollywood

LOS ANGELES — When the United States and 11 other Pacific Rim countries announced yesterday (Oct 5) that agreement had been reached on the long-in-the-works Trans-Pacific Partnership, Hollywood trade groups issued statements of praise, while digital rights group Electronic Frontier Foundation declared, “Now the Real Fight Against TPP Begins.”

For years, the pact has been hotly debated, with groups like the MPAA and the Recording Industry Association of America pushing for more uniform protections for intellectual property in the face of rampant overseas piracy, and a number of public interest groups critical that it will benefit primarily large corporations.

The controversy over the pact, however, has largely been based on leaked versions of preliminary text, the last of which was from May. Although the US Trade Representative posted a summary of the agreement on its website yesterday, it is of the broad outlines.

President Obama said that, among other things, the trade pact “promotes a free and open Internet”.

“When more than 95 per cent of our potential customers live outside our borders, we can’t let countries like China write the rules of the global economy,” he said. China is not part of the trade pact, but a hope among some supporters is that it will pressure the country to adopt some of the same standards.

Other countries in the TPP are Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam.

The devil will be in the details, and the final text is not expected to be released until at least a month or so. Mr Obama cannot sign it until after a 90-day review period, after which Congress will give it an up or down vote, without the possibility of amending it. A vote is not expected until next spring.

Here are some of the areas that have the biggest potential to impact showbiz:

Copyright terms: Studios and labels want more uniformity in copyright terms, currently life of the author plus 70 years in the United States, and 95 years for corporate-owned works. That exceeds the life-plus-50 years from the Berne Convention, the international agreement on copyright.

A leaked draft of the agreement from earlier this year included three proposals for life of the author plus 50, 70 and 100 years. This has led to suspicion that the trade pact could be a backdoor way to extend copyright terms even further or foreclose proposals revise the US law, even though such moves would be subject to separate congressional legislation. The US Trade Representative says that the protections will be drawn from “international norms”.

Fair use: While Hollywood’s interests often lie in protecting intellectual property, independent filmmakers and documentary producers depend heavily on U.S. copyright law’s concept of “fair use” or the use of material without authorisation of the owner. That is why they will be reading the language carefully, along with other groups like those representing librarians and archivists.

The US Trade Representative says that the pact includes an obligation that countries “seek to achieve an appropriate balance in copyright systems through, among other things, exceptions for legitimate purposes, such as criticism, comment, news reporting, teaching, scholarship, and research, and clarifies that exceptions and limitations are available for the digital environment.”

Safe harbours: The extent to which the trade pact would provide ISPs with so-called “safe-harbour” protection has been hotly debated. Internet providers in the US are shielded from liability from the infringing material of their users as long as they meet certain conditions, including promptly removing material upon notice.

The US Trade Representative says that the pact requires countries “to establish or maintain a framework of copyright safe harbours” for ISPs, but that will not include requiring that ISPs monitor their systems for infringing activity. US trade officials also say that the pact “provides for safeguards against abuse of such safe harbour systems.”

Enforcement: The fight against piracy has often been stymied by the varied level of enforcement of infringement in other countries, particularly when it comes to online infringement. The pact tries to bring uniformity to this area, and includes “strong enforcement systems, including, for example, civil procedures, provisional measures, border measures, and criminal procedures and penalties for commercial-scale trademark counterfeiting and copyright or related rights piracy”, according to the USTR.

What will be closely watched are provisions on damages in civil litigation. That includes how parties can collect for the amount of their loss due to piracy, and additional damages as a deterrent to future infringement. A leaked draft from May also included a provision that provided compensation for copyright enforcement abuse, although it was opposed by the US negotiators.

Higher standards for protection, supporters have said, will be a factor in expanding the markets for US movies, TV shows and music.

Digital tariffs: The agreement “prohibits the imposition of customs duties on electronic transmissions”, and also prohibits countries from “favouring national producers or suppliers of such products through discriminatory measures or outright blocking”. The industry has an interest in ending tariffs on such things as digital cinema prints.

The TPP member countries also have agreed not to require that companies build local data centres as a condition for operating in that country.

Cary Sherman, chairman and CEO of the RIAA, said that the agreement is designed, “at least in part, to create the legal and enforcement infrastructure to facilitate digital trade”. REUTERS/VARIETY.COM