Coverage of the Canadian government’s decision to seek entry into the Trans Pacific Partnership trade negotiations with the United States, Australia, and many other Asian and South American countries has focused primarily on the potential impact on supply management systems in the dairy and other agricultural sectors. While some believe Canada will ask for an exemption for supply management (and some countries view Canada’s entrance into the talks with skepticism), the potential impact of the TPP on Canadian intellectual property laws should not be overlooked.
Based on leaks of the current drafts of the TPP IP chapter, the agreement would overhaul Canadian copyright law far beyond what is contemplated in Bill C-11. In fact, the TPP would require even stricter digital lock rules, extend the term of copyright, restrict trade in parallel imports, and increase various infringement penalties. If Canada were to ratify the TPP, it would require another copyright bill to undo much of what the government is about to enact with Bill C-11. A recent study on the implications of the copyright provisions point to many concerns including:
- extend the current term of copyright protection from the current Canadian law of life of the author plus an additional 50 years to life plus 70 years. The additional 20 years goes beyond international law requirements and has been widely criticized by many groups.
- new digital lock rules that would increase penalties for circumvention and restrict the ability to create new digital lock exceptions. While Bill C-11 is far more restrictive than necessary to comply with the WIPO Internet treaties, it does include a mechanism to identify new exceptions.
- new statutory damages provisions that could require the government to reverse the changes found in Bill C-11 that distinguish between commercial and non-commercial infringement.
- new rights management information rules that would lower the standard for violation and extend the scope of prohibited activities.
- new enforcement requirements that may require the disclosure of personal information without any privacy safeguards
- new copyright criminalization requirements even in cases that “have no direct or indirect motivation of financial gain.” The criminal provision also cover “aiding and abetting”, which may be applied to Internet providers.
- new ISP liability provisions that would require a notice-and-takedown system contrary to the approach established under Bill C-11
- a new requirement to provide copyright owners with an exclusive right to block “parallel trade” of copyrighted works. This would stop the importation of a copyrighted work from one country where the good is voluntarily placed on the market to another country where the same good at the same price is unavailable. The Supreme Court of Canada looked specifically at these issues several years ago and rejected attempts to use copyright to stop such activities.
The concerns with the TPP do not stop with copyright. Proposed patent rules would alter the scope of what is patentable under Canadian law, extend patent terms, and create triple damage awards for patent infringements.
In short, the TPP would require a massive overhaul of Canadian intellectual property law, far beyond that envisioned by either Bill C-11 or even the Anti-Counterfeiting Trade Agreement. Given the government’s insistence that Bill C-11 represents a balanced approach, one wonders how it views the TPP’s IP provisions, which effectively involve the U.S. seeking to export restrictions not even found in its own domestic laws.