Jurassic World grossed over $315 million abroad last weekend, including more than $100 million in China. The overseas success of the Universal Pictures film – and the fact that for years overseas profits have outstripped domestic ones – calls into question the perpetual narrative that foreign IP laws are non-existent or inadequate. The matter is timely, since this narrative is made in support of the copyright section of the Trans-Pacific Partnership Agreement.
Although the text of the current draft of the TPP is still secret, the IP chapter has been leaked several times during the course of the negotiations, most recently in October 2014. The copyright section of the IP chapter has been discussed several times in this blog, including here and here. Throughout the TPP negotiations, the U.S. has attempted to export certain features of U.S. copyright law, some good, some not-so-good. The good include safe harbors for Internet intermediaries and language on exceptions inspired by the fair use doctrine. The not-so-good include the DMCA prohibitions on circumvention, a life of the author plus 70 years term of protection, and statutory damages.
The new language on exceptions may cause the TPP’s copyright subchapter to be more balanced overall than the copyright subchapters in the various free trade agreements the U.S. previously entered into with other TPP countries, including Peru, Chile, Korea, Australia, and Singapore. But why are copyright issues injected into trade agreements at all?
According to USTR’s TPP Issue-by-Issue Information Center, “in TPP, we are working to advance strong, state-of-the-art, and balanced rules that will protect and promote U.S. exports of IP-intensive products and services throughout the Asia-Pacific region….” Similarly, Hollywood’s trade group states that “a completed TPP that implements strong intellectual property protections will allow the creative community to reach new markets through more legitimate platforms, meaning greater surpluses and more jobs here at home.” A joint letter from content industry trade associations to Congress in support of the Trade Promotion Authority asserted that including intellectual property protections in TPP “is vital to creating meaningful new market access for U.S. innovations and creations.”
In other words, the copyright subchapter of TPP will raise the level of copyright protection in the Asia-Pacific region, thereby making it safer for U.S. works to be exported to that region. This has been the justification for injecting intellectual property law into trade agreements for two decades. Underlying this argument is the premise that copyright protection in our trading partners, whether those currently in TPP or those that might join in the future (i.e., China), is inadequate.
This is where Jurassic World comes in. In addition to its strong showing in China, the film did extremely well in Mexico, Korea, Malaysia, the Philippines and Australia—all TPP countries. This result appears to be in tension with the narrative that copyright protection in the Asia-Pacific region is inadequate to “ensure the safety of our creative works.”
Another important explanation for the global box office success of Jurassic World may be that the film was released in many markets around the world simultaneously. In the past, the studios released films internationally weeks, if not months, after their North American release, providing commercial scale infringers with a significant window in which to capture sales. Digital distribution of films has allowed simultaneous global release, or even prior international release, when that suits the studio’s marketing strategy. This is more evidence that business model changes can be even more important than policy changes when it comes to reducing copyright infringement.
In sum, the copyright subchapter of TPP may provide content providers with little of practical value. Because of the relatively high level of existing copyright protections in the Asia-Pacific region, the copyright subchapter may not lead to more protection that would promote greater exports of U.S. works. On the other hand, enshrining in TPP long copyright terms and prohibitions on circumvention will make it more difficult for Congress to make meaningful copyright reforms in the future.