Whether you are a cosplayer, an artist or a crafter the TPP is bad news.
What is the TPP?
The Trans-Pacific Partnership agreement (TPP) is a multinational trade agreement between twelve nations that will directly affect almost all of us. The countries currently negotiating this agreement are U.S., Canada, Australia, Japan, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Mexico, and Brunei Darussalam.
There are a lot of ways the TPP could affect you and a lot of reasons to object to it.
Reason for Concern
The primary reason to object to this ‘trade’ agreement is the lack of transparency. The contents of this agreement are so secret that only member of congress are allowed to read it, and then they can only access a hard copy, of one section at a time in the basement of the Capitol. They are not allowed to record any of it, or retain any notes and they can only be accompanied by an aide that has a high enough security clearance. Technically the members that do read it, aren’t even supposed to talk about what they have read.
The claims are that the U.S. portion of the TPP can’t be made public because it is still under negotiation. They claim that the problem with making it public would be that you would be giving countries an unfair advantage at the negotiation table. So basically Country ‘A’ would find out that the U.S. offered Country ‘B’ a 52” TV, when all they were offered was a 27”.
I can sort of see their point, but the secrecy isn’t 100%. It seems that there is a select group of 28 U.S. government appointed trade advisory committees and 16 of those groups contain corporations such as GE, Apple, AT&T, Dow Chemical, Nike, Walmart and the American Petroleum Institute. All of these are big businesses that definitely don’t have your welfare in mind.
If that isn’t enough to make you concerned then keep reading
Cosplayers, artists, costumers, crafters are all going to be hurt by the chapter on Intellectual Property because it will have a massively negative effect on freedom of expression, right to privacy and due process.
As none of this information was officially available to the public, we needed to rely on leaked documents such as those provided at keionline.org, even now the publicly available is rumored to be missing components.
Currently most cosplay and fan-produced art or props are derivative works and protected under the Copyright Act of 1976. A derivative work is loosely defined as a replica with enough artistic license and variation to ensure that it is not a direct copy of the original
Cosplay tends to fall into this category because they are not only changing the medium, such as from animation to real life, they are also making decisions on the costuming itself which once again, changes it from the original work. Costumes in particular have been examined by the Copyright office on numerous occasions and in 1991 they decided that as long as costumes meet the required minimum of creativity they are considered an original work of authorship.
Many artists also do work that falls into this category by creating parodies or costume variations on popular characters, thus creating original works of art.
The grey area for cosplay has always been regarding the character itself. It is possible to copyright a character as a whole provided they have a combined set of characteristics that make them unique and easily identifiable outside of their standard context. Luckily each individual is alive as opposed to animated and can be easily identified as portraying a well-known character, but will not be identified as the character themselves, this means the cosplayer falls under the category of derivative work. However, when a cosplayer chooses to portray a live-action character the line gets a little blurry as it is possible to be confused with the live action character portrayed by an individual actor. Luckily most cosplayers are different not only in appearance, but also in mannerisms which means this blurry line doesn’t get crossed too often.
Under the TPP any derivative work would also be considered a copyright violation and could lead to criminal charges. The copyright holder would not even have to be the one filing a complaint, any third-party could. Which means that certain extreme church groups or even just your ex, could have you up on criminal charges just because you chose to dress as Batman for charity event.
Some of the participating countries, such as Japan, added an exception which states that there are exceptions for cases where it does not affect profitability. However, it doesn’t give a distinction between positive and negative profitability.
Under the Intellectual Property provisions they are pushing to lower the bar for what is considered criminal and increase the penalties dramatically. This means that the average fan can end up stuck in a costly legal battle and potentially face jail time, even if the copyright holder does not pursue it. All things derived from or associated with copyright material is included which mean cosplay, fan art, fan films and fan fictions are all in danger.
Is it Really that Bad?
Certain companies (particularly one with a well-known rodent) are notorious for going after anyone that even has a hint of a copyright infringement on them, even threatening privately owned daycares for the use of characters on their walls. However after the acquisition of the Marvel and Star Wars franchises, which rely heavily on their fan bases, and the massive hit Frozen they seem to have backed off.
If this ends up in the final copy of the TPP, will it be enforced? Probably not. At least not by the average copyright holder as they realize that their fame and fortune comes from their fans and fans draw and create other fans. However, as long as it is on the books we are potentially in trouble.
Until a major case is brought forward and the courts have an opportunity to interpret the TPP copyright regulations we won’t know how it affects fans. The first case will set the precedent for all future cases.
My guess is that with the major case things will be cleared up and something similar to the current derivative works will be established. Yes, we are up against big business, but other big businesses will also have our back because they don’t want to lose the revenue that a fan base brings them. If the fan base is decimated because the fans are afraid of being prosecuted they lose a lot of money. Companies like Disney (including Marvel and Star Wars) will be forced to set an official viewpoint on fan creations such as fan art, fan films, fan fiction and cosplay.
I can see them cracking on the cosplayers that make a profit off of their characters. Money making Cosplayers such as Ivy Doom Kitty, whose primary character is based on of Doctor Doom, will have to apply for licensing rights, but the average Joe is safe. The professionals who sell photos and merchandise portraying licensed characters will be the ones hit.
With cosplay convention attendance approaching 100,000 people at New York, San Diego, Salt Lake City and DragonCon there just isn’t the man power to enforce the TPP regulations.
The bigger name cosplayers who have several thousand followers like Nicole Marie Jean, Leanna Vamp and Jessica Nigri will probably be able to obtain a copyright license for their more popular character cosplays, but those with less of a fan base may find it a little more difficult.
The other areas this will affect is fan art. If you are drawing a character to hang on the fridge, then no one will care, but if you try to sell it at a con or on Etsy, you may find yourself on the wrong side of the law thanks to the new TPP agreement. Same applies to those who 3D print props or weapons from movies.
As an individual cosplayer you may be safe, but the TPP has so many areas that will infringe on you and everyone else that you should be paying attention to it.
Areas to be concerned about include:
Expanded Copyright terms – copyright will move from 50 years after death to 70 years after death for individually created works. Published works will be copywritten for 95 years or 120 years if they are owned by a corporation.
Escalation of Digital Lock Protection – It will be a criminal violation to circumvent ANY digital lock, whether it infringes on copyright or not. This includes unlocking phones to change networks or using a competitors garage door opener that happens to have the same frequency. The DRM protection measures are even being used to try to block printer cartridge refill services.
Honest Journalism is being threatened – Vague text about the misuse and definition of trade secrets threatens every legitimate journalist with criminal punishment. In fact, anyone who reveals or accesses allegedly confidential information through a computer system, which is also very loosely defined, can face criminal charges.
Internet Freedom – A huge burden will be placed on the Internet providers, making them responsible for every activity that is perceived as potentially illegal. This is a threat to everyone as providers will be forced to monitor and restrict Internet activity simply to protect themselves. Meaning that you will lose all Internet privacy.
HEAVY Criminal enforcement – The way things are currently written something as simple as sharing a home video on Facebook with your family could get you jail time. If you have copy protected music as the overlay you could be arrested, if you created a Captain America pancake you just committed a crime.
Fight the TPP
It’s amazing what could be considered a crime under the TPP which is why you need to fight back and do what you can to fight it.
In the U.S.
Contact your politicians and get them to speak out against this trade agreement.
Here are a few links to get you started:
GetUPS! has a tool to contact your senator
Every country has a protest. Just do a search and find it. Spread the word on the TPP and let everyone know that this is something we need to object strongly to.