Leaked drafts of the Trans-Pacific Partnership [TPP], specifically the chapters addressing copyright and intellectual property, reveal that the trade agreement may have dire consequences for those in particular fandom communities.

If you enjoy cosplaying (the act of creating costumes and dressing up as favourite characters) or selling your own original art featuring licensed characters like Spider-Man, Iron Man or the Hulk at fan conventions and you live in one of the 12 countries who negotiated the TPP (including Canada), you may want to pay attention.

“If you're doing fan art that uses large amounts of the original source material and it's going online, that's the riskiest kind of stuff,” says Jeremy Malcolm, Senior Global Policy Analyst at the Electronic Frontier Foundation, a leading U.S.-based non-profit organization dedicated to defending civil liberties in the digital world.

This is because the TPP applies criminal charges to copyright infringement that's of a “commercial scale,” so any time art or anything else featuring a copyrighted character or idea is sold through an online store, such as Etsy or Redbubble, the number of customers who could potentially buy it is considered of a commercial scale. However, the TPP also states that an infringing person does not need to be part of a for-profit enterprise to be of commercial scale and can still subject to criminal charges.

View photos A search on Etsy for nintendo brings up hundreds of unofficial items based on licensed characters. More

Suffering for their Art

“The way they've defined it in the TPP, something can be defined as commercial scale, even if you're not making any money from it. So, if you're posting things like fansubs, [original movies or TV shows with new fan-made subtitles] those are things that are usually posted for free, even though they could be sold,” says Malcolm. “There are a lot of people viewing and distributing fansubs, so they count as being commercial, even though they're not.”

As a result, those independent artists who sell original art featuring licensed characters at conventions or online – even if they're just displaying this art for free on sites like DeviantArt – could also be subject to criminal prosecution.

“Not only artists, but the platforms that they use to post their art, should be concerned,” says Malcolm. “Particularly if you are an intermediary who hosts a bunch of fan artists, the copyright holder is very likely to come after you as an intermediary because it's easier to take down a bunch of stuff at once, rather than go after two dozen individual artists.”

If someone is found infringing on copyright under the proposed TPP rules, they could face several different outcomes, including having to pay for damages.

The offending material could be confiscated and though the TPP doesn't specify a civil offence dollar figure, it does state that the court must be able to award damages as compensation. The TPP also outlines additional damages beyond compensation that are meant to discourage others from infringing on the copyright. It says the court can use the retail price of the infringing goods to assess what those damages should be and the copyright holder is allowed to suggest whatever additional damages they believe would be appropriate.

“Overall, the worst parts of the copyright provision are in these increased damages and other remedies that are required to take place, such as the destruction of goods,” says Jamie Love, director of Knowledge Ecology International – a knowledge resource management organization that was one of the first to leak a TPP draft.

Story continues