With the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) signed, with key IP provisions previously requested by the US now excluded, attention has turned to the Regional Comprehensive Economic Partnership (RCEP), a similar regional trade agreement involving 7 of the same key countries. The IP provisions of the RCEP are facing similar scrutiny, and some civil society groups have expressed concern that the proposed standards could stifle creativity and free speech.
A draft version of the IP chapter of the proposed (RCEP) multilateral agreement was leaked in October of 2015, and was closely picked over and compared to the (at the time still in development) Trans-Pacific Partnership (TPP).
The proposed copyright provisions included in the draft chapter drew particularly close scrutiny, with civil society groups such as the Electronic Frontier Foundation (EFF) concerned, firstly, at the inclusion of copyright in multilateral treaties at all, and secondly at the potential they see for harm to the public interest in any changes to copyright law in the participating countries.
The most controversial developments which the draft chapter could bring to the copyright landscape in the signatory countries fall roughly into 4 categories: preconditions; new communication methods; rights management; and enforcement.
The draft chapter proposes that signatories must, as a precondition, accede to or ratify a number of existing treaties and conventions which deal with IP. This includes TRIPS, the Berne, Rome, Beijing and Marrakesh conventions, as well as the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty (collectively known as the WIPO “Internet Treaties”). For the more developed party nations, this will not mean much as most of these have already been adopted, however for the less-developed nations this will inevitably lead to firmer rules around copyright, particularly in terms of recognition and enforcement of foreign-owned copyright.
The draft chapter also contains provisions which seek to address issues of copyright infringement through online streaming and other means of digital communication. This is proposed to be addressed primarily through reinforcing the exclusivity of the ‘making available’ right. The chapter also includes draft provisions which strengthen the rights of broadcasters to exclusivity of their broadcast programming, a controversial proposal in some countries where unlicensed rebroadcasts of foreign programming are common.
A third category of draft proposals revolves around different means of managing and protecting copyright. The draft chapter contains provisions addressing collecting societies, technological protection measures and rights management information. These are among the most contested proposals in the chapter, with clear lines drawn between the more- and less-developed nations about whether these should be included.
The proposed enforcement provisions include a proposal put forward by South Korea, requiring countries to curtail repeated infringements over the internet, and by Japan, requiring the disclosure of information relating to allegedly infringing internet subscribers. The proposed chapter also seeks to set out and strengthen increased civil and criminal penalties for infringement.
Notably the draft chapter does not include any proposals which would extend the base copyright period beyond 50 years, which was a controversial factor in the TPP negotiations, or much in the way of imposing secondary liability on ISPs.
The copyright provisions of the draft RCEP IP chapter generally have a lighter touch than the corresponding TPP provisions that raised a lot of ire during the negotiation phases. The reality is that the IP chapter, and the copyright provisions it contains, are likely to have already changed significantly in the past few years, and will certainly change further before the RCEP reaches its final form. With the information available, fears of doom and gloom for free speech and expression do seem overblown given the relatively light touch of the provisions which have received broad support. At the same time, civil society groups opposed to the more contentious forms of strong copyright protection, such as criminal penalties, secondary liability, and identification of infringing individuals are likely to be justified in keeping a close watch on the development of the text. Ultimately it appears unlikely that the final agreement will impose drastic changes on the copyright landscape beyond anything already encountered in the majority of developed countries.