TPP: What the Government Use of Software Provisions Mean

The following article examines the Trans-Pacific Partnership (TPP) Intellectual Property (IP) Chapter Article QQ.H.11, “Government Use of Software,” now available via WikiLeaks.

Article QQ.H.11 reads as follows, with footnote numbering reproduced from the text:

Article QQ.H.11: {Government Use of Software}

1. Each Party recognizes the importance of promoting the adoption of measures to enhance government awareness of respect for intellectual property rights and of the detrimental effects of intellectual property rights infringement.

Without Prejudice

2. Each Party shall adopt or maintain appropriate laws, regulations, policies, orders, government-issued guidelines, or administrative or executive decrees providing that its central government agencies use only non-infringing computer software protected by copyright and related rights, and if applicable, only use such computer software in a manner authorized by the relevant license. These measures shall apply to the acquisition and management of such software for government use¹⁵⁷.

¹⁵⁷For greater certainty, paragraph 2 should not be interpreted as encouraging regional government agencies to use infringing computer software or, if applicable to use computer software in a manner which is not authorized by the relevant license.

What This Means

The language of the Trans-Pacific Partnership’s ostensible provision on Government Use of Software (Article QQ.H.11) is short and relatively straight-forward. The two paragraphs and one footnote exhort TPP Parties to: (1) atmospherically appreciate the importance of a government’s own respect for IP rights with an eye to the evils of infringement; and (2) when acquiring software, use only licensed, non-infringing software in a manner authorized by the applicable license.

Breaking this down, Paragraph 1 is obvious compromise language aimed squarely at some of the most flagrant abusers of intellectual-property rights: governments themselves. Don’t get me started on the times I’ve seen Federal employees at almost all levels scamper down the path of blatant misappropriation of trademarks, always oblivious to infringement issues. I cringed one year over a Federal charity publicity campaign which, if memory serves, included an “homage” to Happy Feet and Shrek, among other contemporary cartoon characters. I’ve heard the rank-and-file grumbling about technological measures taken (usually for security purposes) to prohibit unauthorized use of software as well as the moaning from managers about paying for software licenses. I’ve even heard the phrase “But, we’re the government!” voiced as a potential reason why a given agency shouldn’t have to pay renewal fees on a software license for multiple users. After explaining that one wouldn’t walk into the local big box store, grab five headphones, then dart out sans paying while shouting “Because we’re the government!” people do get it, but software licenses are probably intuitive only to those in the IP community. [As an aside, for anyone interested in U.S. Federal contract regulations surrounding copyrights, the Federal Acquisition Regulation (FAR), at Part 27 and especially Subparts 27.2 and 27.4, is useful reading.]

Having worked for a couple of Federal government agencies in the United States, I can tell you acquisition specialists such as Contracting Officers are not usually versed in – much less attuned to – the intellectual-property enforcement issues associated with patent, trademark, and copyright infringement. Even information technology (IT) professionals who use computer software 24/7 can find it difficult to grasp the full virtue of licensed use in a licensed manner. This means educating government contracting and IT cadres alone represents a massive undertaking. Then try getting the word out to the rest of the 2.7 million or so Federal government employees. And that’s for just one TPP Party.

All this is to say, focus on enhancing government “awareness of respect for intellectual property rights” and “the detrimental effects of intellectual property rights infringement” is probably as forceful language as the IP community can realistically expect from an agreement crafted by government officials themselves.

Paragraph 2, looks like another softball (and it is), but again it’s probably as energetic as possible given the relevant target is the Parties themselves. Unfortunately for owners of every other type of intellectual property – including many types of copyrighted material – Paragraph 2 focuses exclusively on computer software. So, when the “Your Famous Mark IP Office of Country X” opens up and its anthem is “Your Famous Song with Some Different Lyrics,” don’t look to this section of the TPP text for relief. Just hope they don’t use “Your Proprietary Vermin-Trapping Means” for pest-control.

Paragraph 2 calls for adoption or maintenance of “Appropriate laws” and other official guidance. This means Parties may determine their current regime is good as is and no further action is required. The United States will certainly argue the status quo is TPP-compliant, with no changes needed. Paragraph 2’s language is notably a protection floor (a minimum required level), thus permitting adoption of criminal sanctions for violations. Unlike the TPP sanctions for decrypting satellite signals, however, there is no requirement – or even suggestion – that “appropriate” should involve making Government misuse of software a criminal offense. Thus, software owners must philosophically contemplate continued misuse of software by large segments of a given population (i.e., government workers), although there’s a bit of consolation knowing unauthorized decryption of entertainment content in their off-duty hours can result in jail time, or at least substantial monetary penalties, for these same government employees.

From a drafting perspective, the phrase “and if applicable” in the first sentence of Paragraph 2 opens the dependent clause to arguable ambiguity. My surmise is the authorized-manner language is intended to mean “If the licensed software contains limitations on use, make sure you abide by those limitations.” Presumably, government IT shops are not free to modify software programs if prohibited by the terms of the license. Consistent with this interpretation, a streamlined alternate wording could have read

Each Party shall adopt or maintain appropriate laws, regulations, policies, orders, government-issued guidelines, or administrative or executive decrees providing that its central government agencies use only non-infringing computer software protected by copyright and related rights and only use such computer software in a manner authorized by the relevant license. [My emphasis.]

If the wording “and if applicable” was included to address open-source software, it is definitely gratuitous since open-source software has licensing terms and conditions. Giving the drafters the courtesy of presuming their language is both informed and intentional, the present TPP language may deliberately offer the loop-hole minded an argument for use of computer software in a manner not intended by the software’s copyright owner.

The last sentence of Paragraph 2 requires Parties to incorporate respect for use of licensed software in their government acquisition and management laws, regulations, policies, orders, guidelines, and/or administrative decrees. This is helpful, but Footnote 157 lets the murder out. Unvarnished, Footnote 157 means government entities in the periphery aren’t allowed to misuse software either. The fact that the IP Chapter drafters have to remind Parties that the “central government agencies” wording doesn’t let bureaucrats in the hinterlands off the hook for infringement more than insinuates that the software misuse exception is proving the current rule.

One word that is not gratuitous – in fact, is crucial – is the word “acquisition” in the last sentence of Paragraph 2. Without this regulator, Paragraph 2 could be read to restrict Parties’ rights to develop software themselves. The TPP text thus does not prohibit Parties from creating something completely new on their own. It does require them to take measurable steps to respect private rights in the intellectual property aspects of software.

On a final note, the wording “Without Prejudice” is explained in Footnote 1 of the TPP/IP Chapter. It means, in essence, “Don’t get upset if the Section and Article titles and headings aren’t perfect. We’re still working on them!” Presumably, “Without Prejudice” also means there are yet one or two more TPP meetings left for the IP Chapter folks before all is concluded.

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Footnote Taken Direct from Article QQ.H.11

¹⁵⁷For greater certainty, paragraph 2 should not be interpreted as encouraging regional government agencies to use infringing computer software or, if applicable to use computer software in a manner which is not authorized by the relevant license.