Draft Marrakesh Treaty submitted by the Drafting Committee to the Plenary, 27 June 2013 by EIFL (CC BY 2.0) https://flic.kr/p/f25S8C



The Trouble with the TPP, Day 5: Rights Holders “Shall” vs. Users “May”

The Trouble with the TPP series concludes the first week with a look at how the TPP treats the interests of rights holders and users completely differently (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules). I noted in the discussion on Internet providers that the most telling provision comes at the very end, where the parties recognize the importance of taking into account the impacts on rights holders and Internet providers. Internet users and the general public do not merit a mention as their interests do not seem to count for the purposes of a notice-and-takedown system for copyright works on the Internet.

The absence of users in the Internet provider section is not an anomaly. Throughout the TPP IP chapter, there are two distinct approaches. Where rights holders interests are concerned, the requirements are typically mandatory (ie. “shall”). Where the issue involves user rights or access, the requirements are not requirements, but rather non-mandated provisions (ie. “may”). For example, consider the international IP treaty obligations in the TPP.  Article 18.7 identifies nine international IP treaties and protocols that are all requirements for TPP members (Patent Cooperation Treaty, Paris Convention, Berne Convention, Madrid Protocol, Budapest Treaty, Singapore Treaty, UPOV 1991, WCT, and WPPT). What about the Marrakesh Treaty to facilitate access to published works for the blind and visually impaired? It is relegated to a footnote with no obligation to implement:

As recognised by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, done at Marrakesh, June 27, 2013 (Marrakesh Treaty). The Parties recognise that some Parties facilitate the availability of works in accessible formats for beneficiaries beyond the requirements of the Marrakesh Treaty.

The TPP also contains dozens of obligations that guarantee rights holders everything from a longer copyright term to limitations on any limitations and exceptions. What about requiring balance within copyright? Article 18.66 falls back on “shall endeavour” language, meaning countries do not face a positive obligation for balance:

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.

That this provision is regarded as a positive step forward highlights just how little user interests factor into the IP chapter.  In fact, Jonathan Band notes that efforts to strengthen the balancing language during the Hawaii round of negotiations was “vehemently opposed by movie studios and other U.S. rights holders.” Negotiators ultimately caved to those pressures and retained the weaker language.

The weak language can similarly be found in safeguards against abuse of intellectual property rights. The TPP is filled with provisions aimed at guarding against misuse or infringement of IP rights. But what about when rights holders misuse their rights? Article 18.3(2) provides more weak language:

Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

How about provisions to enhance access to the public domain? No such luck as Article 18.15 merely “recognizes” the importance of a rich and accessible public domain as well as the importance of publicly accessible databases to identify works that are now in the public domain. Or how about legal protection for libraries and educational institutions against criminal liability for circumventing a digital lock? Unlike the many digital lock requirements in the TPP, Article 18.68 says that countries “may” provide that the criminal provisions do not apply to those institutions.

The examples go on and on with obligations when rights holder interests are involved and optional provisions for users. The public still has the option of being heard, however. As part of its consultation process, the Canadian government is inviting comments on the TPP at any time via email at TPP-PTP.consultations@international.gc.ca.


  1. oil tanks;
    buck is bottom feeding
    and the ravaging hordes desend. (corps, china, etc)

    user rights? it is to laugh…

  2. Why should we be at all surprised?

    “Users” (in any form whatsoever) were not invited to participate in the negotiations and were denied any copies of the negotiations until the Corporate interests were finished dictating how things will be and their Corporatist governments signed off on them.

  3. Oh well. If they don’t feel users matter nor deserve a place at the table, we’ll feel free to completely ignore their silly treaties. I’m an ethical person, but when I see the corps flex their muscles to continually lengthen copyright terms against the public good, I have no problem ignoring those same copyright laws.

  4. I too feel I am an ethical person at heart but when it comes to the copyright extention I have no respect for the industry. Every artist learns their craft from their predecessors and has an obligation to pass on their creations to culture at large. They certainly deserve compensation for their works but the greedy media corporations want to squeeze every penny out of the public before it is released to the public domain.

  5. Hello Mr. Geist,

    Thanks for the article. I found it understandable and informative. I do wonder if you might provide some ideas for what we as the general public/users/consumers might find more fair and constructive and how we could go about framing that in feedback to the TPP-PTP.consultations email address.

    Having been occasionally following your missives since the blank CD levy of the late 90s, I’ve found that you are someone who I as a consumer feel comfortable trusting and I believe that you make important issues around IP, copyright, DRM, etc. very understandable. I really appreciate your work here and think it’s not just valuable now but that it is one of those topics where decisions we/our nations make today can have far reaching consequences and I believe that getting information out to us people and providing us with direction for some simple avenues to push for change (e.g. putting the request-for-comment email address in this post) is something that can improve our collective future.

    Without, I’m hoping, going too far afield, I feel that activism and giving everyday people information and tools and incentive to help us provide educated, sound, and regular direction to policy makers is incredibly valuable while being very difficult to do effectively (without, for one, turning potential activists off). For instance, I signed some petitions and sent emails regarding my dislike of Bill C-51 using the web interface provided by OpenMedia. Same thing for some other issues like net neutrality. When I learned a bit about these issues and how they might affect our (my) future I felt prompted to act. The actions were small and it’s hard/impossible for me to tell what impact my emails had but I felt it was worthwhile and it got me concerned about the landscape for privacy/personal data sharing and the right for everybody to have open internet access, respectively. This is stuff that I think will only become more important in the future. We want and need, I think, to have access to real privacy while using the internet, and we want, I think, to provide unfettered internet access to everybody, just like we do/want to do with running water and health care and grade school education.

    And yet, the constant assault on the inbox by groups like OpenMedia and just about every other charitable organization/NGO who I’ve ever interacted with or given money to is draining and sometimes makes me feel like my efforts to add my push to a bigger movement are futile or (if you catch me in a bad mood) may even have ultimately negative consequences. The worst is when I make a small one-time donation to some group and it seems like the entire positive effect I intended to produce must eventually have been voided by the never-ending physical junk mail campaign that followed, hounding me to give more money.

    I hope I’m not out of line by asking you to solve an incredibly difficult problem in a few lines of text by replying to a comment on your blog, but these are some things I’ve been thinking about, and I’m wondering if you have any suggestions for me. I’d like to be part of a world where we can provide a way for people to have the ability to make informed decisions and votes and provide useful and sound feedback to their politicians. But I’d also like to be in a world where there’s a system for allowing and encouraging people to do that, without disrespecting them or making them feel bad about it afterwards (spam! I’m looking at you spam! and the fact that most of us who get asked to donate are already less than rich to begin with… and please do not get me started on the practice of young people soliciting for *monthly* recurring donations on the streets, a regular occurrence in big cities that makes me at times feel very uncomfortable – IMO, this is in the neighborhood of some deeply unethical territory).

    Yes, this is something that’s on my mind, I am sorry if it’s too much, but I have found your thoughtful and concise and audience-valuing/respecting communications to be very encouraging, and I couldn’t resist asking 🙂

    Have a good one.

    – Narsa

    P.S.: the infojustice link (looks like a PDF on fair use) is currently broken.

    • Devil's Advocate says:

      “…the infojustice link (looks like a PDF on fair use) is currently broken.”

      Their domain appears to have expired.

      • Lee Anderson says:

        100% agreement re charities. You have moved me to mark all incoming charity e-mails to spam. If I want to give I will do so at my chosen time, place, and amount. Thank you for your comment.

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