How Closed Trade Deals Ratchet Up the Copyright Term Worldwide

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Although copyright is a subject of international law—principally the World Intellectual Property Organization (WIPO)'s Berne Convention from 1886 and its Internet Treaties from 1996—it is still implemented and enforced primarily through national laws. Those laws differ from one country to another in significant ways. One of the most significant differences is the length of the term of copyright protection, which varies from the life of the author plus 50 years (the Berne Convention's minimum requirement), up to life plus 100 years (in Mexico).

Differences in the law aren't a bug; they're a feature. Just as a country has the right to craft specific exceptions to copyright law based on its own national circumstances (for example in India, where many foreign books are not available for sale, copyright law allows public libraries to make up to three copies of such books), so too it should be able to adopt the copyright term that makes the most sense for its citizens—which in most if not all cases will be the shortest term allowed.

But because differences in copyright term make things more complicated for copyright holders, there are constant efforts by some copyright holders to try to homogenize the duration of copyright so that they can more easily enforce their copyrights worldwide—and of course, they would like them to be harmonized at the life-plus-70 year term, so that they can extract another 20 years of monopoly rents, over and above the Berne Convention's standard life-plus-50 year term. Trade agreements are one way that they are trying to achieve this. Here's how.

Trade Agreements

Like the WIPO Berne Convention, a trade agreement is essentially a treaty, but with two important differences. First, whereas WIPO treaties are negotiated with a pretty good degree of transparency and participation from users, including input from groups like EFF, library associations, and groups representing users with disabilities, trade agreements… aren't. The groups who have access to those negotiations are the cleared corporate lobbyists that staff the U.S. Trade Representative's (USTR) Trade Advisory Committees, or their equivalent advisory processes in other countries (we wrote more about this for last year's Copyright Week). Last month an EFF-led group associated with the United Nations Internet Governance Forum (IGF) issued recommendations about how trade negotiations could be made more transparent and inclusive, but this remains an ongoing battle for now.

The second big difference is that rather than dealing with a single, narrow topic like WIPO's treaties do, a trade agreement typically deals with a whole gamut of topics such as labeling standards for meat, inspections of clothing factories, and time limits for government tenders. Somehow, countries engaged in such a negotiation have to balance the value of preserving their autonomy to make their own copyright rules, against the demands of their negotiating partners—and those of their own industry lobbies—in diverse other areas. This typically results in countries trading away their locally-developed copyright rules almost as an afterthought. In a 2017 report, Australia's Productivity Commission observed:

A ‘more is better’ mindset, and poor consultation and transparency, have proven problematic in Australia’s international IP dealings. International agreements that commit Australia to implement specific IP provisions — such as the duration of patent or copyright protection — have worked against Australia’s interests. These agreements typically involve trade-offs, and keen to cut a deal, Australia has capitulated too readily.

One of the rules that is typically traded away is the extension of the copyright term. That's the one and only reason why Singapore and Chile extended their copyright terms in 2003, Australia did so in 2005, and Bahrain and Morocco did so in 2006, just to mention a few.