What???s at Stake in the San Diego Round of the Trans Pacific Partnership Agreement (TPP)

TEMPORARY COPIES: TPP Art. 4.1 proposes to extend the minimum requirements of the right to reproduction for all protected works to include the right to exclude ???temporary storage in electronic form.??? The WIPO Performances and Phonograms Treaty extends the right of reproduction for performers and producers of phonograms to ???any manner or form.??? But proposals to include a specific right to block temporary reproduction in electronic form were considered and rejected in the negotiation.[4]

The language in TPP Art. 4.1, although included in some other US Free trade agreements, is not a full expression of U.S. law on the topic. Section 106(1) of the Copyright Act does not contain language prohibiting reproduction ???in any form.??? It rather prohibits reproduction of the ???copyrighted works in copies or phonorecords.???[5] Nor does U.S. law include an extension to ???temporary storage in electronic form.??? U.S. law requires that an infringing copy be ???fixed,??? meaning ???sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.???[6] Likewise, the Digital Millennium Copyright Act [hereinafter DMCA] recognizes a safe harbor for ???system caching.???[7]

The distinctions are particularly important for enforcement of copyright on the internet. Lower courts in the U.S. have, for example, held that copyright does not extend to buffer copies on the internet.[8] Similarly, although not a party to this agreement, the EU Copyright Directive (Directive 2001/29/EC, Article 5) contains an explicit exception for temporary reproductions addressing automated caching.[9]

Preposterous. First it’s a property, then it’s emphemeral. Whatever makes the most money.

This “ephemeral” right is all about the collecting agencies having a club to beat blanket licences out of ISPs and, well, anyone with a router and money I guess.

Sleazy. And typical. If there’s value, there’s rights.

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