Balanced Copyright in RCEP – International IP and the Public Interest

Credit: Original article can be found here

The Regional Cooperation for Economic Partnership (RCEP), signed on November 15, 2020 by fifteen countries in the Asia Pacific region, includes language on copyright exceptions that builds on provisions that appeared in the Comprehensive and Progressive Trans Pacific Partnership Agreement (CPTPP) and the Korea US Free Trade Agreement (KORUS). CPTPP is the successor to the Trans-Pacific Partnership (TPP), finalized in 2015. After President Trump withdrew the United States from TPP in 2017, the eleven remaining TPP countries entered into the CPTPP in 2018. The copyright exceptions language in CPTPP is identical to the copyright exceptions language in TPP. See here for a discussion of the emergence of CPTPP from TPP.

The CPTPP and RCEP copyright exceptions provisions are set forth below. Both provisions include the three-step test (CPTPP 18.65.1 and RCEP 11.18.1) and “balanced copyright” language (CPTPP 18.66 and RCEP 11.18.3). The balanced copyright language was originally proposed by the United States in 2012 in the TPP negotiations. See here for a discussion of the evolution of this language in TPP.

The major difference between the CPTPP and RCEP provisions is the addition of article 11.18.4 in RCEP. This language explicitly permits countries to adopt exceptions for “fair use.” This fair use language is identical to footnote 11 in the Intellectual Property chapter of KORUS. Korea reportedly insisted on inclusion of this language in KORUS in 2007, presumably to ensure that the United States would not interfere with its adoption of a fair use provision. Korea enacted such a provision in 2011. Korea is not a member of CPTPP, but is a member of RCEP, so it is likely that Korea requested the inclusion of this language to preempt any suggestion that its fair use provision is not consistent with RCEP.

There are some technical differences between the “balanced copyright” paragraphs in CPTPP and RCEP, but they do not appear substantive, e.g., replacing “teaching, scholarship, research, and other similar purposes” with “education” and “research;” or “endeavor to achieve an appropriate balance” with “endeavor to provide an appropriate balance.”

CPTPP includes approximately 13.5 percent of the global economy, while RCEP includes 30 percent. Thus, RCEP more than doubles the share of the global economy encompassed by a trade agreement that includes a commitment to achieve balanced copyright protection. Additionally, RCEP represents a broad endorsement by countries other than the United States of the compatibility of fair use with the three-step test.

CPTPP Copyright Exceptions RCEP Copyright Exceptions
Article 18.65: Limitations and Exceptions
 
1. With respect to this Section, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.
 
2. This Article does not reduce or extend the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, the Berne Convention, the WCT or the WPPT.
 
Article 18.66: Balance in Copyright and Related Rights Systems
 
 Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.[77,78]
 
(fn 77. As recognised by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, done at Marrakesh, June 27, 2013 (Marrakesh Treaty). The Parties recognise that some Parties facilitate the availability of works in accessible formats for beneficiaries beyond the requirements of the Marrakesh Treaty.

(fn 78. For greater certainty, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under Article 18.65 (Limitations and Exceptions).

Article 11.18: Limitations and Exceptions
 
1. Each Party shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.[15]
 
(fn 15. For greater certainty, this paragraph shall not prevent a Party from providing limitations or exceptions for broadcasts in accordance with multilateral agreements related to intellectual property to which that Party is, or becomes, party.)
 
2. Nothing in paragraph 1 shall reduce or extend the scope of applicability of the limitations and exceptions available to a Party as a party to the TRIPS Agreement, the Berne Convention, the Rome Convention, the WCT, or the WPPT.
 
3. Each Party shall endeavour to provide an appropriate balance in its copyright and related rights system, among other things by means of limitations and exceptions consistent with paragraph 1, for legitimate purposes, which may include education, research, criticism, comment, news reporting, and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.
 
4. For greater certainty, a Party may adopt or maintain limitations or exceptions to the rights referred to in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in paragraph 1.
CPTPP Countries RCEP Countries
Australia
Brunei Darussalam
Canada
Chile
Japan
Malaysia
Mexico
Peru
New Zealand
Singapore
Vietnam
Australia
Brunei-Darussalam
Cambodia
China
Indonesia
Japan
Korea
Laos
Malaysia
Myanmar
New Zealand
Philippines
Singapore
Thailand
Vietnam