A recently-leakeddraftof the Mercosur-EU free trade agreement shows minor improvements to the chapter on intellectual property. It appears that the unnecessary and unwarranted 20 year copyright term extension is now dropped from the agreement, and the parties have introduced some flexibility for users to get around technical protection measures in order to leverage their rights. But for the most part, the negotiations continue to favor increased tightening of copyright at the expense of protections for user rights and the commons. As we explain below, measures to support the public domain continue to be watered down, the provision which requires mandatory compensation—whether creators want it or not—is retained, and the section outlining exceptions and limitations to copyright is pulled back to a minimum.
Last year, in collaboration with several partners from our global network, Creative Commons published a briefpolicy analysiscovering several copyright-related issues presented in a draft of the intellectual property chapter of Mercosur-EU free trade agreement.
The European Union (EU) and the Latin American sub-regional bloc consisting of Argentina, Brazil, Paraguay, and Uruguay (Mercosur) have been negotiating this free trade agreement (FTA) since 2000. It’sexpansive其中包括工业和农产品贸易、中小企业管理规则的潜在变化以及政府采购，以及版权和专利等知识产权条款。We examined issues that would affect the public domain, creativity and sharing, and user rights in the digital age.
The Mercosur-EU FTA negotiations take place in an environment where an increasing level of copyright policy is being constructed through multilateral trade agreements.In our policy brief, the main points we argued included the following:
- copyright terms should not be extended
- user rights must be protected by expanding limitations and exceptions
- mandatory remuneration interferes with CC licensing
- technical protection measures must not limit the exercise of user rights
我们还重申了长期以来的常识性原则，即贸易协定谈判必须透明和公众参与，而不是秘密和关起门来决定。
Since our analysis, there has been two subsequent leaked drafts of the chapter on intellectual property. One waspublishedby Greenpeace in December 2017 based on the 28th round of negotiations. Another waspublished last weekby the websitebilaterals.org, based on the consolidated text as it stood at the completion of the 32nd round of negotiations which ended last month.
As Jorge Gemettowrote在通讯协会的博客上，绿色和平组织泄露的知识产权章节的文本显示了各方之间的重大分歧。
It is easy to see that, while the interest of the European Union is to increase the terms and scope of IP protection, as well as to impose new penalties on infringement, Mercosur countries seek to avoid higher IP standards, incorporate mandatory limitations and exceptions to copyright, and favor the identification and protection of the public domain.
As Gemetto warns, there’s a big discrepancy in the bargaining power leveraged by each party, with the EU clearly holding the upper hand. And with the EU already aligned with the more restrictive“TRIPS Plus”IP framework, they’re looking to export these increased protection and enforcement measures elsewhere.
Finally, we arrive to the recent leaked intellectual property chapter published by bilaterals.org. There are a few notable changes since the Greenpeace version.
Mention of public domain will be watered down, and buried
The Greenpeace leak (Dec 2017) found the parties arguing whether (and how) there should be a mention of support for the public domain in Article 4 (Principles). The EU sought the language, “The Parties recognise the importance of a robust, rich, and accessible public domain,” while the Mercosur countries (MCS) advocated for, “The Parties shall take due account of the need to preserve a robust, rich, and accessible public domain, and shall cooperate with each other in identifying subject matters that have fallen into the public domain.”
The EU version won. The consolidated text shared by bilaterals.org now reads “The Parties recognise the importance of a robust, rich, and accessible public domain”). In addition, a note on the document moves the text from the “Principles” section to the “Cooperation” section.
Mandatory remuneration stays
The earlier Greenpeace version showed that the parties were arguing whether there will be mandatory remuneration (Article 9.6) for performers and producers of music. The EU wanted the text to read “The Parties shall provide a right in order to ensure that a single equitable remuneration is paid by the user to the performers and producers of phonograms, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public.” MCS wanted to only make this right optional, suggesting that the text should read “The Parties may…”
The EU version won. The consolidated text now reads “shall.” This change repeats a common theme seen within the negotiations: provisions that have to do with enforcement and protecting incumbent rights holders are mandatory (“shall”), while provisions that would benefit users and the public interest are only optional (“may”). This type of arrangement would interfere with the operation of some Creative Commons licenses by requiring a payment even when the intention of the author is to share her creative work with the world for free.
Copyright term extension put on hold
The draft leaked by Greenpeace found that the parties continued to argue about copyright term (Article 9.7). EU wanted life + 70 years, while MCS life + 50.
The consolidated text now reads “shall run for the life of the author and not less than 50 years or for 70 years where the domestic legislation of the Parties so provides…”.
The MCS version won because the text states that existing national terms will apply. This is a significant improvement in that it doesn’t require the countries with the shorter term to increase to the longer term. Further extending copyright terms does nothing to promote the creation of new works, and even exacerbates related challenges, such as the orphan works problem.
Exceptions and limitations pulled back to a minimum
The Greenpeace leak showed that the parties were arguing about the scope of the section on limitations and exceptions (Article 9.9). MCS wanted to include non-exhaustive list of acceptable uses to be covered under limitations and exceptions, including for criticism, news reporting, teaching, and research.
但是，由bilaterals.org发布的综合文本不包括不完整的列表。相反，它大多回到了依赖三步测试语言(“各方应仅在某些特殊情况下对专有权规定例外和限制，这些特殊情况不与对标的物的正常利用相冲突，也不合理地损害权利人的合法利益”)。
版权保护和执法措施必须兼顾公众利益;也就是说，在版权生态系统中，作者的权利始终要通过承认和维护用户的权利来调和。合并后的文本只提供了对用户权利的最低限度考虑。
Some flexibility to exercise rights under TPM schemes
最后，绿色和平组织的版本发现欧盟正在围绕技术保护措施提出新的语言，或TPMs (Article X.15)。在较早的草案中，没有列入允许对技术措施进行任何规避，以便使用户在例外或限制下行使其权利的案文。
然而，合并文本现在包括以下语言:“各方(欧盟:在其国内法允许的情况下)应(欧盟:可以)确保权利持有人向某一例外或限制的受益人提供从该例外或限制中受益的手段，在从该例外或限制中受益所需的范围内。”因此，似乎至少会有一些法律考虑来保护用户规避tpm的能力，以便在例外或限制下行使他们的权利。
Conclusion
While it’s positive that at least the parties are coming to the conclusion to forego the gratuitous copyright term extension, most of the changes in the consolidated text show a continued tightening of copyright protections that favor incumbent rights holders at the expense of users and the commons.
Furthermore, the negotiations remain mostly secretive and closed, with little public knowledge save for these helpful leaks, and few opportunities for the public to voice their concerns. The negotiations must be reformed to fully support a process that is transparent, inclusive and accountable.
