The recently leaked Trans-Pacific Partnership (TPP) provisions do “disappointingly little to protect...

Trade Representative has attempted to negotiate the free trade agreement with eight other countries. Specifically, Rangnath took issue with the provisions’ “three-step test,” which would determine which unlicensed uses of copyrighted material would be legal. According to the post, “one of the standard iterations of the test” designates exceptions to copyrights as “[1] certain special cases that [2] do not conflict with a normal exploitation of the work, performance, or phonogram and [3] do not unreasonably prejudice the legitimate interests of the rights holder.” This test on its own leaves too much room for interpretation, Rangnath said: “The controversy over how to interpret the three-step test means that many countries may hesitate to protect users’ rights in their copyright laws, out of a fear that the provisions they adopt will be assailed as violating their international obligations. ... Given this environment, provisions in international agreements like the TPP need to spell out in more detail what copyright limitations and exceptions should look like.” While Rangnath commended the provisions for “enumerating purposes such as criticism, commentary, news reporting, research, and scholarship,” she encouraged USTR to include provisions that would “promote uses of works by people with disabilities,” such as translating reading material into Braille, and “promote educational uses of works including by transmission over wired or wireless networks.” Concepts like these, Rangnath said, can be found in the Trans-Pacific Strategic Economic Partnership Agreement of 2005, which, she said, “is technically the predecessor to the TPP. ... However, it is unclear whether those provisions will still be valid and applicable if the TPP comes to force.” A USTR spokeswoman declined to comment on the leaked provisions. Regarding the release of the official draft, the spokeswoman told us the “full draft of the negotiated TPP text will be made public at the completion of negotiations, so that Congress and the public can have ample time to review and discuss before Congress acts on any legislation to implement the TPP agreement."