Together with 11 other countries, Mexico agreed to the Trans-Pacific Partnership Agreement (TPP) via a joint declaration on November 18, 2015. The Agreement represents the latest international effort to modernize IP systems around the world, and could have far-reaching implications for IP rights in many of the participating countries. While it merely confirms or improves the level of copyright protection provided by previous international IP treaties, such as the Paris, Berne and Rome Conventions, or by free trade agreements such as TRIPS or NAFTA, it also addresses new questions-some of which are related to digital rights, including liability of internet service providers (ISPs).
The treaty is strategic for Mexico, considering the existing partnership with NAFTA countries, but also because of the opportunity the TPP presents to strengthen ties with Japan, Chile and Peru and to initiate a relationship with Malaysia, Singapore, Vietnam, Australia and New Zealand. The TPP will ultimately provide Mexico access to markets totaling 36% of the world’s GDP and 25% of international trade.
Chapter 18 of the TPP is devoted to IP rights and divided into 11 sections (A through K). For the purpose of this newsletter, the relevant sections are: H, “Copyright and Related Rights”; I, “Enforcement”; and J, “Internet Service Providers”.
1. Section H, “Copyright and Related Rights”
This section builds upon the substantive principles of the Berne, Rome and WIPO Copyright Treaty/WIPO Performances and Phonograms Treaty, and on the procedural principles of NAFTA and TRIPS. In essence, the section provides minimum standard provisions in connection with the economic rights of reproduction, distribution and communication to the public, including certain limitations and exceptions to such rights.
Importantly, the TPP has raised the minimum term of copyright protection to life of the author plus 70 years, or, if the copyright owner is someone other than the author, 70 years after the first authorized publication of a work, performance or phonogram (or creation of a work if not published within 25 years). Other topics covered by this section include ensuring that there is no hierarchy between the rights of authors, on the one hand, and the rights of performers and record producers on the other, and the importance of collective management based on practices that are fair, efficient, transparent and accountable.
This section also addresses the topic of Technological Protection Measures (TPMs) in detail. It raises the standards of the WIPO Treaties for criminal or civil remedies against circumvention of measures to protect works, performances and recordings. Moreover, it improves remedies against the sale or rental of products, devices or components thereof that circumvent TPMs. Newer rules have been provided in connection with limitations or exceptions to TPMs in cases where TPM rights have an adverse impact on legal circumvention activities. Additionally, section H addresses Rights Management Information (RMI). It provides for criminal or civil remedies against people who knowingly (or with a reason to know) remove or alter an RMI from a work-or a copy thereof-or distribute or communicate to the public works or copies without an RMI. Remedies are available if, by removing or altering an RMI, or by distributing or communicating to the public works or copies without it, the infringer induces, enables, facilitates or conceals an infringement to copyright or neighboring rights.
Once the TPP is approved, the Mexican Congress will need to work hard to improve the existing protections for TPMs and RMIs, which are presently quite limited.
2. Section I “Enforcement”
This section can be seen as a continuation of the principles of NAFTA and TRIPS, with some nuances. For example, the article on “Presumptions” says that, for copyright actions, it shall be presumed that the person whose name is indicated in connection with a work, performance or production is the copyright or neighboring right owner, and that the copyright or related right subsists in the subject matter and is valid and enforceable. This presumption of ownership and validity means that the contesting party shall bear the burden of proving ownership or validity.
A second novel aspect of this section is that, as far as copyright infringement is concerned, the TPP signatories need to provide that judicial authorities can order the infringer to pay the right holder the infringer’s profits that are attributable to the infringement, in addition to awarding attorneys’ fees. With regard to criminal proceedings for piracy, the parties need to ensure that infringing copies get destroyed without compensation.
Camcording has been included within the article relating to “Criminal Procedures and Penalties “. In keeping with this, the TPP signatories are required to adopt or maintain criminal procedures and penalties to deter the harm triggered to rights holders by illegal camcording of works.
Finally, the TPP affords protection of encrypted program-carrying satellite and cable signals, making it a criminal offense to manufacture or sell devices for the purpose of assisting in decoding said signals or willfully receiving or further distributing them, knowing that they were decoded without authorization of the lawful distributor of the signal.
The Mexican Congress will be required to make adjustments to current laws in order to expedite these proceedings. Likewise, the presumption of copyright ownership and validity shall need to be made clearer in the law. A copyright system including damages and destruction of infringing copies will require legal changes as well, and camcording is a sensitive issue requiring changes to the law that have been expected for a long time.
3. Section J “Internet Service Providers”
This section can be viewed as the first international approach to ISP liability. It is based on the experience of the U.S. and other countries. Accordingly, section J defines and categorizes ISPs and provides legal remedies to protect authors, performers and producers against online infringement. The term “infringers” not only refers to users of works, performances or recordings, but also to ISPs, who can be liable for indirect infringement. Additionally, section J provides safe harbors for ISPs who cannot control infringement or cannot initiate or direct it. ISPs shall qualify for safe harbor protection if they maintain a good faith framework by participating in stakeholder organizations, giving appropriate guidelines to qualify for the safe harbor, including removal or disabling access upon receiving a notice, or by adopting measures to find responsibility when the ISP has knowledge of an infringement or awareness of facts or circumstances from which infringement is apparent. TPP signatories have agreed that by implementing the framework to their domestic laws, they need to observe constitutional principles. The government can take a role in the process or not. In the end, the notice system can be a “notice-and-take-down” approach, like in the U.S., a “notice-and-notice” approach, like in Canada, or another similar approach. “Counter-notice” can be considered as well. Essentially, signatories have agreed to adopt the guidelines of the U.S. Digital Millennium Copyright Act, but not its scope.
The Mexican Congress will have to start from square one to implement the standards of section J of the TPP. To that end, it will be important to first evaluate the need to hold ISPs liable, despite the fact that the infringement they enable is usually not direct. Finally, it will be crucial that the Mexican judiciary gains a better understanding of these issues and thus elevates copyright to the level of a human right in the sense that it is inherently tied to freedom of expression and the right of access to information.