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Re: Trans Pacific Partnership Consultation
I am a law professor at the University of Ottawa, Common Law Section where I hold the Canada Research Chair in Internet and E-commerce Law. I obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School. I am the editor of From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (2010) and In the Public Interest: The Future of Canadian Copyright Law (2005), both published by Irwin Law, the editor of several monthly technology law publications, and the author of a popular blog on Internet and intellectual property law issues. I serve on many boards, including the CANARIE Board of Directors, the Canadian Legal Information Institute Board of Directors, the Privacy Commissioner of Canada’s Expert Advisory Board, the Electronic Frontier Foundation Advisory Board, and on the Information Program Sub-Board of the Open Society Institute.
I am grateful for the opportunity to comment on Canada’s potential participation in the Trans Pacific Partnership (TPP) negotiations. I should preface these remarks by expressing my extreme concern with the lack of transparency associated with the TPP negotiations. Much like the Anti-Counterfeiting Trade Agreement that is now the subject of international criticism, negotiating such treaties behind closed doors with no authorized disclosure of draft text is enormously problematic. It raises serious democratic participation concerns and makes it exceptionally difficult to comment on substantive issues. Indeed, my concern â€“ which I believe is shared by many Canadians â€“ is that the draft text will only formally be released once the agreement is concluded. This will leave Canadians without a meaningful opportunity to comment on the treaty. Should Canada join the TPP negotiations, it should insist on greater transparency than has been evident to date.
On a substantive level, I would like to focus on the consultation question on â€œviews and experiences with the protection of intellectual property rights.â€ In short, I believe the Canadian approach on the inclusion of intellectual property within the TPP should be to reject any attempt to exceed the international standards contained in agreements such as the Berne Convention or the WIPO Internet Treaties. While requiring compliance with these treaties may be reasonable to include within the TPP, renegotiating international copyright laws should occur in an open, transparent manner that includes all stakeholders. Establishing new standards within closed trade agreements undermines the international copyright system and made-in-Canada copyright policies.
As you are aware, a draft version of the intellectual property chapter of the TPP leaked online last year. As currently drafted, the chapter would have enormous implications on Canadian intellectual property law. With respect to copyright, it would:
- 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.
- Require 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.
- Require new statutory damages provisions that could force the government to reverse the changes found in Bill C-11 that distinguish between commercial and non-commercial infringement.
- Require new rights management information rules that would lower the standard for violation and extend the scope of prohibited activities.
- Require new enforcement requirements that may mandate the disclosure of personal information without any privacy safeguards.
- Require 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.
- Require new ISP liability provisions that would mandate a notice-and-takedown system contrary to the approach established under Bill C-11.
- Establish 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.
As John Ibbitson recently described in the Globe and Mail, this is nothing short of â€œsurrendering Canadian sovereignty over copyright.â€
I am particularly concerned with three of these issues: digital locks, term extension, and ISP liability provisions.
1. Digital Locks
Bill C-11′s anti-circumvention provisions have proven to be the most controversial aspect of the government’s copyright reform package. The current approach largely mirrors the anti-circumvention provisions found in the U.S. Digital Millennium Copyright Act, with prohibitions on both circumvention (copy and access controls) and the distribution of circumvention tools. The bill already extends far beyond requirements under the WIPO Internet treaties. A wide array of organizations have argued that the provisions should be amended to allow for greater flexibilities. While the final outcome of the bill remains unknown, the TPP could require the government to undo its current digital lock approach by adding new limitations and restrictions. These changes amount to a re-writing of the WIPO Internet treaties and run contrary to the government’s own stated claims that Bill C-11 already strikes an appropriate balance. The government should vigorously reject any provisions that would require additional digital lock restrictions.
2. Copyright Term Extension
The TPP would require countries (such as Canada, New Zealand, and Japan – all current or potential TPP members) that meet the international copyright term standard of life of the author plus 50 years to add an additional 20 years to the term of protection. The extension in the term of copyright would mean no new works would enter the public domain in those countries until at least 2033 (assuming an agreement takes effect in 2013).
While the change would obviously delay all works slated to enter into the public domain by 20 years, it is worth noting the many important authors who would be immediately affected since their works are scheduled to become public domain in the 2013 – 2033 period. The impact on Canadian culture and history is worthy of particular attention. The list of Canadian authors whose work would be blocked from entering into the public domain includes:
- Gabrielle Roy, considered one of the most influential Canadian authors in history. Her book The Tin Flute won multiple awards and laid the foundation for the Quiet Revolution in Quebec in the 1960s.
- Donald Creighton, widely regarded as one of Canada’s most influential historians, with a major two volume biography on Sir John A. MacDonald that both won Governor General’s awards.
- Marshall McLuhan, one of the world’s leading media theorists.
- Gwethalyn Graham, who twice won Governor General’s awards and who became the first Canadian to have a novel appear on top of the New York Times best seller list.
- Hubert Aquin, a leading Quebec author, whose novel Next Episode, is regarded as a classic of Canadian literature.
- Ethel Wilson, regarded as one of the leading authors from B.C. The province’s top fiction award is named after her.
- E.J. Pratt, regarded as Canada’s foremost poet of the first half of the 20th century.
- Susan Wood, an award winning science fiction author, who received three Hugo awards.
- Winifred Bambrick, who won the Governor General’s Award for fiction in 1946.
- Winthrop Pickard Bell, one of Nova Scotia’s leading historians.
- Thomas Costain, who was a best selling author of historical novels.
- Ralph Allen, an award winning journalist, who won wrote several books on Canadian history.
- Hugh Garner, who won a Governor General’s award for short stories in 1963.
- Germaine GuÃ¨vremont, who won a Governor General’s award for fiction in 1950.
- A.M. Klein, one of Canada’s best known poets and Governor General award winner.
This list is obviously a tiny fraction of the authors whose works would be prevented from entering the public domain for decades under the TPP plan. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to Canadian literature and history. Looking ahead, the likes of Margaret Laurence and Robertson Davies would be similarly delayed for 20 years.
Project Gutenberg Canada, which publishes public domain works online, has examined its current offerings and concluded that the impact on Canadian access would be very significant. Approximately 160 artists and authors would be lost under term extension with few of their works currently commercially available. In other words, the works would simply disappear for decades, with no commercial benefit to the copyright holder but a significant loss to the public.
Moreover, term extension would not be limited to written works. The term of protection for sound recordings would be massively increased over the Bill C-11 approach, with a 95 year copyright term the typical standard. For most sound recordings, this would result in nearly doubling the term of protection. Sound recordings from the 1960s that are scheduled to come into the public domain over the next few years would remain subject to copyright protection until 2055 and beyond. The extension would result in a huge wealth transfer from Canadians and mean that millions would never see the sound recordings from the 1960 and 1970s enter the public domain in their lifetimes.
The Canadian response to term extension requirements should be unequivocal: no copyright term extension provisions in the TPP that create any requirements to exceed the requirements found in the Berne Convention.
3. ISP Liability
The leaked chapter of the TPP IP chapter indicates that implementing a notice-and-takedown approach to ISP liability may be included. Bill C-11 establishes an intermediary liability system based on a â€œnotice-and-noticeâ€ approach. The notice and notice system involves a notification from a copyright holder – often involving movies, software, or music – claiming that a subscriber has made available or downloaded content without authorization on file sharing systems. The Internet Service Provider (ISP) forwards the notification to the subscriber but takes no other action – it does not pass along the subscriber’s personal information, remove the content from its system, or cancel the subscriber’s service.
While some have been critical of the notice-and-notice system (claiming that the U.S. notice-and-takedown system is more effective), the evidence to date suggests that notice-and-notice is very effective as a tool against infringement and will provide adequate protection for IP rights holders. For example, Rogers Communications, one of Canada’s largest Internet providers, advised a House of Commons committee that it processed 207,000 notices in 2010, sending those notices to about five percent of its customer base. Of the households that receive notices, only 1/3 receive a second notice. Of those that receive a second notice, only 1/3 of those receive a third notice. The Rogers data suggests that 67% of recipients (which is already only five percent of subscribers) do not repeat infringe after receiving a notice and 89% cease allegedly infringing activity after a second notice. Within two notices, about 99% of Rogers subscribers are not receiving infringement notifications.
Those numbers are very similar to data from the Entertainment Software Association of Canada, which found that 71% of notice recipients did not place an infringing file back on BitTorrent systems. Similarly, the Business Software Association told the CBC in 2007 that the notice-and-notice approach has “been most effective.”
The government has been adamant that it has adopted a balanced approach on ISP liability in Bill C-11. It is correct and it should not agree to any provisions in the TPP that require a re-writing of the approach as found in the current bill.
Copyright provisions have traditionally played a very minor role in Canadian trade agreements. The TPP (along with the Canada â€“ EU Trade Agreement) represent a very significant change that is part of a broader effort to pressure Canada to change its copyright laws. While most agree that there is a need for some reforms, discarding a made-in-Canada approach for one drafted in Brussels or through TPP negotiations raises significant concerns that implicate both current and future legislative proposals.
The Canadian approach on the inclusion of intellectual property within the TPP should be to reject any attempt to exceed the international standards contained in agreements such as the Berne Convention or the WIPO Internet Treaties. While requiring compliance with these treaties may be reasonable to include within the TPP, renegotiating international copyright laws should occur in an open, transparent manner that includes all stakeholders. Establishing new standards within closed trade agreements undermines the international copyright system and made-in-Canada copyright policies.