Obama Trade Policy Seeks To Include Exceptions In Trans-Pacific Partnership

Trade Policy Could Clarify Copyright Rules

WASHINGTON -- The Obama administration on Tuesday received cautious praise from open Internet advocates, after it released an outline for key proposals affecting Internet freedom under a major trade deal.

For the first time, the U.S. will propose a provision in a trade agreement that will "obligate" nations "to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research."

The proposal is currently being discussed at negotiations for the Trans-Pacific Partnership trade pact. The most recent round of talks began in San Diego on Monday, and will continue through the week.

Trade agreements usually involve a detailed list of rights that nations must provide to authors of new works -- including any original content from books to software. But while the deals often include general provisions permitting countries to adopt exceptions to those rights, they have never been explicitly required.

Those exceptions are what allow for the existence of everything from libraries to movie reviews. They're also critical for a host of internet operations, which frequently reference or make use of copyrighted material under well-established "fair use" standards and other key exemptions.

"It's a nice step, if they're going to be more explicit about exemptions than they have been in the past," Sherwin Siy, vice president of legal affairs for Public Knowledge, an open Internet advocacy group. "I might consider being mollified if I could see the actual text."

Siy said that any exemptions will only tell half of the story for Internet freedom, noting that other draft provisions of the pact that have previously leaked would expand the length of copyright terms beyond World Trade Organization standards, and dramatically ratchet up enforcement techniques -- efforts that could restrict the functioning of an open Internet, and subject legitimate products and services to penalties.

"We're encouraged that the USTR (United States Trade Representative) has acknowledged that we can have strong and balanced copyright," said Matthew Schruers, vice president of law and policy at the Computer and Communications Industry Association, a tech lobbying organization. "There is still much more to be done, on this issue, other IP issues, as well as issues outside of the IP space. Nevertheless, this is an important first step toward modernizing the trade framework for the twenty-first century."

The USTR -- the White House agency, led by Ron Kirk, that's responsible for negotiating the Trans-Pacific deal -- said this new outline aims to enhance the framework of the Trans-Pacific Partnership.

"The TPP is intended to be a 21st century agreement, covering a number of emerging issue areas, and it’s clear that this is an issue of major importance to many stakeholders," said USTR spokesperson Carol Guthrie in a written statement. "After consulting with them and with our trading partners, we’ve decided to further enhance our framework."

Last year, Hollywood's efforts to implement new American copyright policies under the Stop Online Piracy Act sparked contentious debate in Congress and among Internet-oriented businesses, who warned that the bill would threaten the functionality of the web and restrict free speech.

That battle culminated in a voluntary blackout in mid-January, in which several major websites temporarily shut-down their operations to protest the legislation. Open-Internet activists have feared for months that the terms of the new Trans-Pacific deal would bind both the U.S. and other nations to SOPA-like standards.

Tech policy and transparency in the Trans-Pacific deal have generated some concern among a few members of Congress, who have said that key staffers were denied access to draft negotiation documents, even though more than 600 corporate officials were able to view the documents through positions on advisory panels.

Last week, Rep. Rosa DeLauro (D-Conn.) and 130 other members sent a letter to Kirk requested greater transparency with Congress in the negotiations. Four Senate Democrats also sent a letter to Kirk requesting more information on the agreements, specifically citing concerns with "Internet freedom" policies.

CORRECTION: An earlier version of this story said Rosa DeLauro was a representative from California. She is actually a representative from Connecticut.

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