Conspiracy theories, copyright term, and the TPP

I try to resist the urge to find conspiracies behind political developments; I tell myself that politicians and bureaucrats are just too unorganized and divided to really conspire about much of anything.  But sometimes that conviction gets tested.

Consider this: under our current, very confusing, set of rules for copyright term, at least some published works will begin entering the public domain in 2019.  No published works have been rising into the public domain for a long time in the U.S., but a work published in the U.S. in 1923, which had its term extended to 95 years from publication by the 1976 Copyright Act, would enter the public domain on Jan. 1, 2019, since 1923 + 95  equals 2018, and for administrate simplicity, works become PD on the first day of the year after their term expires (hence January 1 is celebrated as Public Domain Day).  Many works are protected for even longer, but this is the earliest we could hope to see published works entering the U.S. public domain.  And because this date is drawing near, it probably will not surprise many, including those who have always believed that protecting Mickey Mouse lies behind the U.S. term of protection, that Congress is once again beginning the process of formulating a new copyright act.  Do we really have any doubts that an extended term will be high on the wish list of the entertainment industry lobbyists?

But — and here is the conspiracy part — in case term extension can’t get through Congress, or cannot get through fast enough (the last copyright revision took over 20 years), there is an alternative approach to punitively protecting valuable icons from the mid-twentieth century — the Trans-Pacific Partnership agreement.

The TPP, as many readers will know, is a massive free trade agreement being negotiated in secret (more or less) between the U.S and eleven other countries.  Included in the TPP is a  chapter on intellectual property, and leaks of the text of that chapter have shown us that negotiators are considering binding the 12 parties to a copyright term that might significantly exceed, possibly even double, the minimum requirement under the Berne Convention of life of the author plus 50 years.  The longest term being proposed in the TPP, and the negotiators do not seem to have agreed on this point yet, is life plus 100 years.

Back in June, Congress renewed so-called fast track authority for the President over trade agreements, so no matter what is in the final version of the TPP, Congress will not get to amend the provisions; they will have to vote either yes or no on the text as it comes from the hands of the negotiators.  Obviously this gives a great deal more influence to the lobbyists, who must work only with the very friendly folks from the U.S Trade Representative’s office, not with the splintered and demanding Congress.  So perhaps this is a backdoor way to protect Mickey well into the 21st century.

We should note, however, that trade agreements are generally not “self-executing,” meaning that they do not become law automatically even once they are ratified.  Each nation must still make changes to their own national laws to bring them in line with the negotiated requirements.  So if a TPP with a copyright term requirement of life plus 100 years did emerge, Congress would still have to act to make that part of U.S. law.  But it would obviously be much easier to get Congress to do so if it were a requirement of a ratified trade agreement; that is great platform on which the lobbyists can stand.

Krista Cox from the Association of Research Libraries has done a wonderful analysis of the latest leaked IP chapter from the TPP, which is worth reading by anyone interested in these issues.  For me, there are three important points to take away from Krista’s analysis.  First, the current version of the IP chapter is an improvement in several ways over what we had seen before.  Second, there is still significant cause for concern in two areas — the proposal to make the issue of technological protection measures independent of the underlying copyright rules regarding a work and the issue discussed above — the potential for a much-extended copyright term to emerge from the negotiation.  And, finally, there is cause for real disappointment, if not much surprise, at the fact that the U.S. is one of only two countries that is apparently opposing a very innocuous provision that acknowledges the importance of the public domain.

With this final point we seem to come full circle.  The U.S., for which the public domain is a Constitutionally-required aspect of our copyright law, opposes an acknowledgement of the importance of that gesture to the public interest.  How can this be?  I am afraid it reminds us again that the folks responsible for copyright policy in our government do not much like the idea that copyright is a bargain with the public.  Rather than listening to the Constitution or to the 225 years of experience of copyright in this country, those officials turn their ears exclusively to the needs and concerns of the legacy entertainment and publishing industries. They seem to hear only the siren song of the lobbyist, and indeed, to move freely in and out of the ranks of those lobbyists.  Perhaps that is the conspiracy I would rather not believe in, a conspiracy to cut the public, and the public interest, out of their discussions about how copyright should work.