Disney, EFF Disagree on Fair Use Treatment in Trans-Pacific Partnership
Projecting U.S. copyright law's fair use policies onto the 11 other Trans-Pacific Partnership member nations would potentially dilute the predictability essential for businesses that develop online services, Disney Vice President-Government Relations Mike Castellano said during a March 17 seminar hosted by the Washington International Trade Association. “You don’t know what it’s going to mean in a completely different legal system, particularly in a civil law system, which most countries are, when fair use is a common law doctrine.” U.S. fair use laws are substantially more developed than any other country’s regime, and applying those concepts beyond borders could astronomically increase companies’ legal costs, which would have a “bait-and-switch” effect on industry, Castellano said.
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Electronic Frontier Foundation Senior Global Policy Analyst Jeremy Malcolm called it “hypocritical” that the fair use benefits can be enjoyed by the U.S., but are “not good enough for anyone else in the world.” Different communities of interest have developed guidance to implementing fair use practices around the world, and U.S. precedent can be cited in courts in countries that have adopted fair use or something similar, such as Israel and Canada, he said. While the same search engines and interactive websites like Google and its YouTube are available in other countries, only the U.S. version of Google has a “fair use playlist” of videos, Malcolm said. “This is what drives people to piracy.”
Without TPP’s IP provisions, “uncertainty reigns,” said Patrick Kilbride, executive director-international intellectual property for the Global Intellectual Property Center at the U.S. Chamber of Commerce. “With them, countries can begin to see better investment in the creative space.” Better IP legal and enforcement structures drive global investment, and strong recent cash flows for TPP members Singapore, Malaysia and Mexico, are examples of that, Kilbride said. “It can work when it’s rigorously applied,” he said. “What doesn’t work is half-measures. That’s why we look so strongly to TPP as a model for what we can do on a much broader basis moving forward.”
In addition to committing to strong IP enforcement, TPP doubles down on enforcing trade secret laws, and this should ensure that U.S. manufacturing stays vibrant, said Corning Director-Global Government Affairs Debra Waggoner. “It requires our trading partners to have protection from trade secrets, and more specifically, to have criminal penalties, and penalties are critically important for the foundation of determinants,” she said. “If you don’t have a penalty, then misappropriation can flourish, because there’s no consequence.”