RCEP: The Other Closed-Door Agreement to Compromise Users' Rights

Close Comparison Reveals Negotiators Repeating TPP's Mistakes

A secretive trade agreement currently being negotiated behind closed doors could lay down new, inflexible copyright standards across the Asia-Pacific region. If you are thinking of the Trans-Pacific Partnership (TPP), think again—we're talking about the lesser-known Regional Comprehensive Economic Partnership (RCEP). While RCEP doesn't include the United States, it does include the two biggest Asian giants that the TPP omits—China and India. So while you won't read about it in the mainstream U.S. press, it's a very big deal indeed, and will assume even more importance should the TPP fail to pass Congress.
When we reviewed the first leaks of the RCEP's intellectual property chapter, they contained quite simply the worst provisions on copyright that we had ever seen in a trade agreement, but we also hoped that these extravagant claims put forward by Japan and South Korea did not represent anything like the final compromise text that would be likely to emerge. About one year later, how much closer towards that compromise have we advanced? Thanks to a more recent leaked version of the RCEP, we can begin to answer that question. This post compares some of the pertinent provisions of RCEP to equivalent provisions of the TPP.

Copyright Term

An important change from the previous leaked text, and an important distinction from the TPP, is that the current text of RCEP contains no requirement for countries to extend the copyright term beyond the minimum specified in the Berne Convention, which is usually the life of the author plus 50 years. This means that for countries that have not already extended their copyright term—and have not signed and ratified the TPP—RCEP would allow them to maintain their existing copyright term.

ISP Liability

The ISP liability provisions in Article 18.82 of the TPP are quite elaborate, in an apparent effort to push most countries towards a DMCA-like system of notice and takedown, while still accommodating those countries with existing systems that don't conform to this model. The equivalent provision of RCEP is stripped of most of this complexity, and simply provides that countries should adopt enforcement measures that “endeavor to apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes.”
Japan proposes a footnote that notes that this could be accomplished by means of a safe harbor regime that limits remedies against online service providers, while preserving legitimate interests of rights holders. However, the footnote does not specify the details of how such a regime should operate. This is both good and bad. It is certainly good that RCEP does not prescribe a single, inflexible model, such as notice and takedown. However, it also fails to require countries to protect Internet intermediaries from liability for their users' content.
Article 9^quinquies 3, proposed by Korea, would also require parties to “take effective measures to curtail repetitive infringement of copyright and related rights on the Internet”—essentially suggesting something like a graduated response regime to warn and/or penalize Internet users who are suspected of copyright infringement. In tandem with this, the following Article would authorize either “competent authorities” (Japan) or “an administrative or judicial procedure” (Korea) to disclose personal information of alleged infringers to a rightsholder who claims infringement.

Conclusion

Without such an overbearing influence from Hollywood lobbyists, RCEP does manage to avoid some of the worst excesses of the TPP—such as the extension of copyright term, the prescriptive ISP liability regime, the most restrictive DRM provisions, and the expansion of trade secrets law. But other provisions, most notably on enforcement, are largely unchanged from the TPP.
By the same token, RCEP fails to improve much on the TPP in areas where it quite easily could; most notably in the language on limitations and exceptions, which fails to require countries to include an equivalent to fair use in their copyright laws.
Finally, the proposed language on related rights for broadcasters is actually worse than the TPP. The TPP negotiators were wise to mostly avoid this topic, being that it is currently still under negotiation at WIPO, whereas RCEP has plunged ahead and sought to enshrine obligations for the protection of broadcasters that remain controversial and untested around the world.
Worst of all is that none of these problems would have come to light if the text of the agreement had not been leaked. Like the TPP before it, the RCEP is being negotiated in a secretive fashion, behind closed doors, without adequate input from Internet users or any other of the stakeholders whose lives and livelihoods it will affect.
The next round of RCEP negotiations will take place behind closed doors in Perth, Australia, next week. It will be the first round at which negotiators will open the doors by a little crack, to allow some presentations from public interest groups. However, this is not enough. In the light of this latest leak, the negotiators ought to follow the recommendations of the Brussels Declaration on Trade and the Internet, and formally release the draft text to the public.