A recently-leaked draft of the Mercosur-EU free trade agreement shows minor improvements to the chapter on intellectual property. It appears that the unnecessary and unwarranted 20 year copyright term extension is now dropped from the agreement, and the parties have introduced some flexibility for users to get around technical protection measures in order to leverage their rights. But for the most part, the negotiations continue to favor increased tightening of copyright at the expense of protections for user rights and the commons. As we explain below, measures to support the public domain continue to be watered down, the provision which requires mandatory compensation—whether creators want it or not—is retained, and the section outlining exceptions and limitations to copyright is pulled back to a minimum.

Last year, in collaboration with several partners from our global network, Creative Commons published a brief policy analysis covering several copyright-related issues presented in a draft of the intellectual property chapter of Mercosur-EU free trade agreement.

The European Union (EU) and the Latin American sub-regional bloc consisting of Argentina, Brazil, Paraguay, and Uruguay (Mercosur) have been negotiating this free trade agreement (FTA) since 2000. It’s expansive, addressing trade in industrial and agricultural goods, potential changes to rules governing small- and medium-sized businesses as well as government procurement, and intellectual property provisions such as copyrights and patents. We examined issues that would affect the public domain, creativity and sharing, and user rights in the digital age.

The Mercosur-EU FTA negotiations take place in an environment where an increasing level of copyright policy is being constructed through multilateral trade agreements. In our policy brief, the main points we argued included the following:

copyright terms should not be extended

user rights must be protected by expanding limitations and exceptions

mandatory remuneration interferes with CC licensing

technical protection measures must not limit the exercise of user rights

We also echoed the longstanding commonsense principle that trade agreement negotiations must be transparent and involve the public, not secret and decided behind closed doors.

Since our analysis, there has been two subsequent leaked drafts of the chapter on intellectual property. One was published by Greenpeace in December 2017 based on the 28th round of negotiations. Another was published last week by the website bilaterals.org, based on the consolidated text as it stood at the completion of the 32nd round of negotiations which ended last month.

As Jorge Gemetto wrote on the Communia Association blog, the text of the IP chapter leaked by Greenpeace showed significant disagreement between the parties.

It is easy to see that, while the interest of the European Union is to increase the terms and scope of IP protection, as well as to impose new penalties on infringement, Mercosur countries seek to avoid higher IP standards, incorporate mandatory limitations and exceptions to copyright, and favor the identification and protection of the public domain.

As Gemetto warns, there’s a big discrepancy in the bargaining power leveraged by each party, with the EU clearly holding the upper hand. And with the EU already aligned with the more restrictive “TRIPS Plus” IP framework, they’re looking to export these increased protection and enforcement measures elsewhere.

Finally, we arrive to the recent leaked intellectual property chapter published by bilaterals.org. There are a few notable changes since the Greenpeace version.

Mention of public domain will be watered down, and buried

The Greenpeace leak (Dec 2017) found the parties arguing whether (and how) there should be a mention of support for the public domain in Article 4 (Principles). The EU sought the language, “The Parties recognise the importance of a robust, rich, and accessible public domain,” while the Mercosur countries (MCS) advocated for, “The Parties shall take due account of the need to preserve a robust, rich, and accessible public domain, and shall cooperate with each other in identifying subject matters that have fallen into the public domain.”

The EU version won. The consolidated text shared by bilaterals.org now reads “The Parties recognise the importance of a robust, rich, and accessible public domain”). In addition, a note on the document moves the text from the “Principles” section to the “Cooperation” section.

Mandatory remuneration stays

The earlier Greenpeace version showed that the parties were arguing whether there will be mandatory remuneration (Article 9.6) for performers and producers of music. The EU wanted the text to read “The Parties shall provide a right in order to ensure that a single equitable remuneration is paid by the user to the performers and producers of phonograms, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public.” MCS wanted to only make this right optional, suggesting that the text should read “The Parties may…”

The EU version won. The consolidated text now reads “shall.” This change repeats a common theme seen within the negotiations: provisions that have to do with enforcement and protecting incumbent rights holders are mandatory (“shall”), while provisions that would benefit users and the public interest are only optional (“may”). This type of arrangement would interfere with the operation of some Creative Commons licenses by requiring a payment even when the intention of the author is to share her creative work with the world for free.

Copyright term extension put on hold

The draft leaked by Greenpeace found that the parties continued to argue about copyright term (Article 9.7). EU wanted life + 70 years, while MCS life + 50.

The consolidated text now reads “shall run for the life of the author and not less than 50 years or for 70 years where the domestic legislation of the Parties so provides…”.

The MCS version won because the text states that existing national terms will apply. This is a significant improvement in that it doesn’t require the countries with the shorter term to increase to the longer term. Further extending copyright terms does nothing to promote the creation of new works, and even exacerbates related challenges, such as the orphan works problem.

Exceptions and limitations pulled back to a minimum

The Greenpeace leak showed that the parties were arguing about the scope of the section on limitations and exceptions (Article 9.9). MCS wanted to include non-exhaustive list of acceptable uses to be covered under limitations and exceptions, including for criticism, news reporting, teaching, and research.

However, the consolidated text published by bilaterals.org does not include the non-exhaustive list. Instead, it mostly goes back to relying on the 3-step test language (“Each Party shall provide for exceptions and limitations to the exclusive rights only in certain special cases which do not conflict with a normal exploitation of the subject matter and do not unreasonably prejudice the legitimate interests of the right holders.”).

Copyright protection and enforcement measures should always be balanced with public interest considerations; in other words, the rights of authors should always be tempered by recognizing and upholding the rights of users in the copyright ecosystem. The consolidated text only provides the bare minimum consideration for users rights.

Some flexibility to exercise rights under TPM schemes

Finally, the Greenpeace version found that the EU was proposing new language around technological protection measures, or TPMs (Article X.15). In that earlier draft, there was no inclusion of text that permits any circumvention of technological measures in order for a user to exercise their rights under an exception or limitation.

However, the consolidated text now includes the following language: “The Parties (EU: where permissible in accordance to their domestic law) shall (EU: may) ensure that right holders make available to the beneficiary of an exception or limitation the means of benefitting from that exception or limitation, to the extent necessary to benefit from that exception or limitation.” So it appears that there will be at least some legal consideration to protect the ability of users to circumvent TPMs in order to exercise their rights under an exception or limitation.

Conclusion

While it’s positive that at least the parties are coming to the conclusion to forego the gratuitous copyright term extension, most of the changes in the consolidated text show a continued tightening of copyright protections that favor incumbent rights holders at the expense of users and the commons.

Furthermore, the negotiations remain mostly secretive and closed, with little public knowledge save for these helpful leaks, and few opportunities for the public to voice their concerns. The negotiations must be reformed to fully support a process that is transparent, inclusive and accountable.