The TPPA provisions will undermine the human right to affordable education and information that Malaysians are entitled to, says Mohd Nizam Mahshar.
On Thursday, 5 November, 2015, the finalised texts of the TPPA were released and our warnings of what the TPPA would contain have been shown to be true.
The Bantah TPPA research team – comprising academics and experts in various fields – is scrutinising the document and has made several analyses which we will present to the public throughout the month of November.
Among the many chapters and provisions that we have warned about, the copyright provisions of the intellectual property chapter also deserve scrutiny. This preliminary analysis was carried out, on behalf of Bantah TPPA by Professor Dr Ida Madieha Abd Ghani Azmi (IIUM), Professor Dr Lim Heng Gee (UiTM), Associate Professor Dr Tay Pek San (UM) and Ms Sik Cheng Peng (UM).
Copyright plays a very important role in education. Educational material such as books, CDs, the internet and computer programmes are what schools, universities and other educational institutions rely upon everyday as part of their role in educating millions and ensuring access to knowledge and information. Millions of Malaysians rely heavily on imported resources and educational content, which are already protected by copyright laws contained in our Copyright Act 1987.
The TPPA’s Intellectual Property chapter’s copyright provisions, however, have negative implications for access to affordable education and information. On the one hand, they do not advance the needs of Malaysia’s education sector, and on the other hand, they impose additional obligations and duties on the various stakeholders in the copyright industries.
Among the problematic provisions are:
- longer copyright ownership – The TPPA provides for an extension of the duration of copyright to 70 years after the author’s death. In the case of sound recordings or films, copyright is extended to 70 years from the date of first publication. Technically, there are provisions that could also lead to an extension of 25-plus-70 years, that is, 95 years! This will lock up knowledge far beyond the current period provided for in our laws (50 years).
- criminalisation even for non-commercial activities – The offences in relation to copyright infringement under our Copyright Act 1987 are only concerned with infringing activities committed for commercial activities. The TPPA, however, requires TPPA governments to treat copyright offences as criminal even when these are not carried out for commercial advantage or financial gain. This puts researchers, lecturers, teachers, students and libraries in a potential position of being criminally liable and subject to substantial penalties and imprisonment.
- criminal liability for aiding and abetting – The TPPA also requires TPPA governments to treat those aiding and abetting copyright infringement as criminally liable. So libraries in which photocopying and scanning facilities are located may find themselves liable for copyright infringement by students, teachers or other researchers! In addition, school teachers in charge of students’ projects (and possibly, even parents who assist their children in their work or projects) are potentially in danger of committing an offence.
- presumption of subsistence of copyright – The TPPA reverses what has, until now, been standard practice. Currently, those claiming copyright infringement have to first prove that there is a copyright in the material in question. The TPPA, however, requires TPPA country authorities to presume that a copyright subsists in a work unless proved to the contrary and shifts the burden on the purported infringer to prove that the copyright does not subsist in the work! This is an unnecessary yet significant burden on the defendant.
- unfair determination of the amount of damages – The TPPA allows the court, when determining the amount of damages to be paid by the party convicted of infringing a copyright, to consider any legitimate measure of value the right holder submits. This includes lost profits, the value of the infringed goods or services measured by the market price or the suggested retail price. The ‘suggested retail price’, may at times be above the actual price which the plaintiff charges for the goods or services, which would be far above what is reasonable.
- internet service providers acting as ‘copyright police’ – Under the current law, knowledge of the potential infringement of a copyright only arises upon notification from copyright owners. It does not require internet service providers (ISPs) to remove or disable access to material whose copyright has been infringed. However, the TPPA empowers ISPs to remove or disable access to material that a party alleges there is copyright over when the ISP comes to know of the potential infringement. This means that online educational material could quickly be made unavailable, even though it may be eventually proven that no copyright was actually infringed.
- destruction of materials and implements – Currently, destruction of materials related to infringement of copyright is confined to the destruction of the infringing goods in question, not implements such as computers, photocopy machines and scanners. Seizure of implements used in the production of the infringing goods has so far only happened in relation to criminal offences. But the TPPA allows the court to order the destruction of materials and implements used in the manufacture of infringing goods. This is an extreme measure, and one would waste useful resources!
Given the negative implications of the agreed provisions of the TPPA and the already stringent standards of our Copyright Act 1987, we do not see the need to have all these additional provisions imposed on Malaysia by the TPPA. The TPPA provisions will undermine the human right to affordable education and information that Malaysians are entitled to.
For all these reasons – and many more that have not been mentioned above – we call on the government, for the sake of Malaysia and her future generations, not to sign the agreement.
Mohd Nizam Mahshar is chairman of Bantah TPPA.