The Trans-Pacific Partnership Agreement is supposed to be secret, but once again a draft has leaked, this time the Intellectual Property chapter. Mike Masnick reviews some of the copyright law provisions, writing at Techdirt:
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…In the copyright section, it appears that US goes beyond existing US law in asking that “making available” be considered one of the exclusive rights protected under copyright law. Some US courts consider “making available” to be considered part of the “distribution” right, but others have disagreed (saying that the distribution right only covers works that have actually been, you know, distributed). While the legacy entertainment industry likes to pretend this is settled law and merely making available equals distribution, that’s not entirely clear. No matter, in the agreement, the US (and Japan) push to require everyone to include “making available” as an exclusive right for copyright holders.
There was great fanfare a few years ago when the USTR announced that, for the first time ever, it would include some language about fair use to appease those who were concerned about how these agreements only ratcheted up the enforcement side of copyright, and not the public’s rights.