Legal Issues In the News

The Trans-Pacific Partnership and Copyright Law


Paul Heald

University of Illinois College of Law

Right now, the Trans-Pacific Partnership trade negotiations and the renewal of the president’s fast track trade authority are squarely in the news.  As a free trader (with some reservations), I’m generally happy to give the President freedom to negotiate with confidence. NAFTA, for example, has had an inarguably significantly positive effect on the GDP of all three trading partners.

One can, of course, point to massive wealth inequalities within the U.S. and Mexico, but that’s the fault of those two governments' failure to adequately tax those who profit the most from economic integration and their failure to adequately police environmental and labor standards. If you don’t like what you see, don’t blame NAFTA, blame Congress for not assuring that the growing pie is sensibly shared.

That said, it is in the best interest of our own economy (and social justice) to build environmental and labor standards into trade agreements (the reservation I noted a moment ago).

Now, you know me as the copyright guy, so what does the Trans Pacific Partnership have to do with intellectual property law?  Well, by all accounts, we are trying to impose our inefficient and broken copyright regime on a long list of potential Pacific trading partners.  I say “by all accounts,” because the negotiations are being conducted in secret with no input from the public or NGO’s. The US government is, apparently, trying to get our friends to make the same colossal error Congress made in 1998 when it froze the growth of the public domain.

In 1998, at the urging of Disney and other large copyright owners, Congress retroactively extended the term of copyright for 20 years to existing works. Nothing has fallen out of copyright since then and recent research shows just how detrimental the term extension has been.

A recent study of the availability of new books on shows just how dire the situation has become.  A random sample of 2000 books on Amazon shows, not surprisingly, that 25% of them were originally published between 2000 and 2010. Ten percent were originally published between 1990 and the year 2000. Before 1990, the drop-off in availability is steep. For example, only about 3% of the sample are books originally published in the 1980’s.

The research, however, shows a dramatic increase in availability for books originally published before 1923, the magic date before which all works are in the public domain. Ten percent of the sample are from 1900 to 1910 and another 10 percent from 1890-1900. In other words, we have access to three times as many books from the 1890’s than the 1950’s, and that’s not accounting for the fact that way, way fewer books were published the 1890’s!

Why this distortion in the market? Well, the vast majority of post-1923 books have fallen out of print and are no longer being made available by their copyright owners. Until their terms expire, we can’t get them on Amazon.  An Atlantic Monthly article summarized the Amazon research: "The Hole in our Collective Memory: How Copyright Made Mid-Century Books Vanish."

And, not surprisingly, the story gets worse. Not only do we have access to fewer books, other studies demonstrate the significant cost increase associated with copyright (just compare the prices of the public domain and copyrighted books in your Penguin Classics collection).

Sadly, to ensure the steady flow of consumer dollars to Disney and members of ASCAP, the RIAA and the MPAA, the Obama administration is working its hardest to require our trading partners to make the same mistake we did, to retroactively extend copyright terms and freeze the public domain. And worst of all, these provisions in the proposed TPP are not even in the spirit of free trade, just greed at the public’s expense.

I'm Paul Heald.

(Rebroadcast from May 18, 2015)