is a freelance reporter and attorney who has been covering intellectual property developments in the US for more than 20 years. He is based in the greater New York City area and may be reached at info@ip-watch.ch

The US got its way. The Trans-Pacific Partnership agreement (TPP) will require all member nations to have a minimum copyright term of life plus 70 years. As a result, Japan, Canada, New Zealand, and three other nations will have to increase the duration of copyright by 20 years. This copyright term extension will benefit powerful interests in the US, but will hurt consumers and creators in six other nations that are part of the TPP.

The Berne Convention for the Protection of Literary and Artistic Works requires that copyright in most works lasts for a minimum of the author’s life plus fifty years. And this used to be the standard in the US.

Then, in the late 1990s, some important works were about to fall into the public domain, including the first Mickey Mouse cartoon and George Gershwin’s “Rhapsody in Blue.” Disney, the Gershwin family trust, and some other important copyright owners lobbied Congress to extend the term of copyright protection. Congress obliged in 1998, passing the Sonny Bono Copyright Term Extension Act [pdf]. This legislation, which many refer to as the Mickey Mouse Protection Act, extended copyright in most works to life-plus-seventy years.

Thereafter, the US has repeatedly pressured other nations to adopt the longer life-plus-seventy standard – and the US has often used free trade agreements to accomplish this. If another country wanted a bilateral free trade agreement with the United States, the US has insisted the agreement must include this copyright term extension. Australia, for instance, changed from life-plus-fifty to life-plus-seventy, as part of the Australia-US Free Trade Agreement. Morocco, Bahrain, Chile, and Singapore also agreed to life-plus-seventy in their respective bilateral free trade agreements with the US.

Now the US is attempting to do the same with the TPP, a proposed multilateral free trade agreement encompassing 12 Pacific rim nations: Japan, Vietnam, Malaysia, Singapore, Australia, New Zealand, Brunei, and on the other side of the ocean, Canada, the US, Mexico, Peru, and Chile. Despite opposition from a number of countries, the US has managed to include the life-plus-seventy provision in the TPP. This will force six countries – Japan, Vietnam, Malaysia, Brunei, New Zealand, and Canada – to extend their terms of copyright protection. As result, these six affected nations could be harmed.

Winners and Losers

The TPP’s copyright term provision clearly benefits America’s large entertainment companies. They will receive an additional twenty years in which to exploit their properties in the six TPP countries that currently have life-plus-fifty regimes. “Owners of some extremely successful works (such as Disney animations) will receive a windfall,” said Prof. Sean Michael Flynn of Washington College of Law, in Washington, DC.

The copyright term extension also benefits the home of those entertainment firms, the US. “The US is a net exporter of creative content,” noted Anissa Brennan, vice president of international affairs and trade policy for the Motion Picture Association of America (MPAA), an industry lobbying group.

The six affected TPP nations, which are net importers of creative content, are not likely to fare as well. These nations’ consumers are likely to wind up paying millions of dollars in additional royalties, mostly to US firms.

How many millions in extra royalties? A 2004 study [pdf] prepared for Australia’s Senate found that if Australia increased its copyright term from life-plus-fifty to life-plus-seventy, as required by the proposed Australia-US Free Trade Agreement, “[t]he net effect is that Australia could eventually pay 25 per cent more per year in net royalty payments…. This could amount to up to $88 million per year…. And this is a pure transfer overseas, and hence pure cost to Australia.”

That was just for one nation. Japan, Canada, New Zealand and the other three affected TPP nations thus could be looking at combined additional royalties of hundreds of millions of dollars per year leaving their borders.

Moreover, the costs don’t end there. By keeping works out of the public domain for an additional twenty years, impoverished residents of these countries will be denied access to many important and useful works.

“For developing countries that already suffer from lack of access to affordable learning materials, twenty additional years of copyright can equate to one more generation who will be deprived of free access to canonical texts that might otherwise be made available free on the internet or in digital archives of a local library,” said Flynn.

There’s also an opportunity cost to keeping works out of the public domain for an additional twenty years. When a works enters the public domain, it can become the basis for valuable and popular new derivative works – such as the batch of recent Sherlock Holmes spin-offs, which could be made because that famous fictional detective had fallen into the public domain. Keeping works out of the public domain thus impoverishes creators, consumers, and society at large.

Supporters of the TPP’s copyright term extension argue that any costs of this extension are outweighed by the benefits. That contention will be examined in another article.