The United States Trade Representative (URTR) has proposed a new copyright provision that would address some intellectual property concerns found in the Trans-Pacific Partnership, a massive trade agreement currently being negotiated amongst nine Pacific Rim countries in San Diego this week. Canada was recently extended an invitation, but its formal membership has yet to be approved by the existing nine countries, including the United States.

In a statement emailed to reporters on Tuesday, the USTR appears to be addressing exceptions to copyright restrictions, which had not been included in a TPP draft leaked a year ago.

"For the first time in any US trade agreement, the United States is proposing a new provision, consistent with the internationally recognized ‘3-step test,’ that will obligate Parties 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," wrote Carol Guthrie, the spokesperson for the USTR, in an e-mail sent to Ars.

"These principles are critical aspects of the US copyright system, and appear in both our law and jurisprudence. The balance sought by the US TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.”

Historically, major intellectual property holders, such as the RIAA and MPAA—who both support the TPP—have called for stronger international copyright protection.

Skeptical optimism

That three-step test, which was established in international law in 1967, generally allows for exceptions to copyright restrictions that do not "conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."

American IP law is, of course, imperfect. However, it does attempt to maintain a balance between strong enforcement mechanisms while also allowing for robust fair use and the public domain. But in IP treaties, all that tends to get exported from the American model are the restrictions, rather than the exemptions.

As such, TPP watchers have cautiously applauded the move.

"Recognizing the limitations and exceptions is generally a very positive development," said Rashmi Rangnath, a staff attorney at Public Knowledge, but she said that her and others' concerns would "depend on [the proposal’s] wording."

Jonathan Band, a Washington, DC-based intellectual property attorney, concurred.

"This is a very positive development," he wrote to Ars in an e-mail on Tuesday. "This is the first time that the US has sought language of this sort in an international agreement. From the blog one can't discern the precise language, which of course makes a big difference in how effective it will be on the ground. Nonetheless, this appears to be a big step in the right direction. Hopefully it will be well received by the other negotiating partners, and perhaps they will make it even stronger."

The specific language here, like the entire treaty itself, has yet to be made officially public.

Devil remains in the details

Fundamentally, interested parties have generally criticized the TPP’s secrecy, as no official draft has ever been made public. The "intellectual property chapter" of the TPP was leaked last year, but no one is sure if the current draft being discussed matches it or not.

Last week, a San Diego County congressman asked to sit in on this week’s round of negotiations—a request that was denied. However, the USTR did allow Rep. Darrell Issa (R-CA) to attend as a "stakeholder," the semi-public part of the talks, but not the negotiations themselves. A separate letter from 130 congressional Democrats illustrates political anxiety that many politicians have with such opaque free-trade agreements, despite the fact that, as Reuters points out, "Congress last year overwhelmingly approved three such pacts—with South Korea, Colombia and Panama."

But beyond the secrecy of the treaty itself, experts have honed in on several problematic aspects to the leaked draft. Among the most important are a lack of definition of fair use and public domain rights, extension of copyright to "life plus 70" (putting it in line with American law), treating temporary copies (such as in a cache or a video buffer on streaming sites) as copyrightable, and a ban on the circumvention of digital locks, among others.

Earlier this year, the Electronic Frontier Foundation (EFF) called it "ACTA-plus," referring to the oft-protested proposed copyright treaty that seems to be on its deathbed.

Update: Parker Higgins, an activist at the EFF, wrote in to Ars to say that the organization "opposes this new proposal, which was made without allowing for input from public interest groups and other interested stakeholders. The USTR may try to paint the "3-step-test" in a positive light, but it actually imposes rigid constraints on the sorts of "fair use" provisions countries may enact."