KEI this morning released the May 2015 draft of the copyright provisions in the Trans Pacific Partnership (copyright, ISP annex, enforcement). The leak appears to be the same version that was covered by the EFF and other media outlets earlier this summer. As such, the concerns remain the same: anti-circumvention rules that extend beyond the WIPO Internet treaties, additional criminal rules, the extension of copyright term, increased border measures, mandatory statutory damages, and expanding ISP liability rules, including the prospect of website blocking for Canada.
Beyond the substantive concerns highlighted below, there are two key takeaways. First, the amount of disagreement within the chapter is striking. As of just a few months ago, there were still many critical unresolved issues with widespread opposition to (predominantly) U.S. proposals. Government ministers may continue to claim that the TPP is nearly done, but the parties still have not resolved longstanding copyright issues.
Second, from a Canadian perspective, the TPP could require a significant overhaul of current Canadian law. If Canada caves on copyright, changes would include extending the term of copyright, implementing new criminal provisions, creating new restrictions on Internet retransmission, and adding the prospect of website blocking for Internet providers. There is also the possibility of further border measures requirements just months after Bill C-8 (the anti-counterfeiting bill) received royal assent.
Given the extensive debate on copyright during the 2012 reforms, the TPP upsets the balance the Canadian government struck, mandating reforms without public consultation or debate. The government has granted itself the power to continue to negotiate the TPP during the election period, but all the major parties should publicly declare where they stand on these issues.
Further discussion on key provisions are posted below.
Unsurprisingly, the U.S.wants all TPP countries to ensure that their copyright term of protection is at least life of the author plus 70 years. That would require countries such as Canada, Japan, New Zealand, and Malaysia to extend their terms by 20 additional years beyond the international standard found in the Berne Convention. The length of term within the TPP is currently in square brackets, suggesting that countries have still not reached a final decision (though expectations are that Canada will cave on the issue).
The Importance of the Public Domain
The general provisions section of the IP chapter contains a notable dispute between Canada and the U.S. over the public domain. There is an article that emphasizes the importance of taking into account the interests of rights holders, service providers, users and the public. Canada and Chile have proposed additional language to acknowledge “the importance of preserving the public domain.” The U.S. and Japan oppose the reference.
Limitations and Exceptions
The copyright provisions include an article on limitations and exceptions that references “criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.” There is also a footnote recognizing the Marrakesh Treaty and one that acknowledges that commercial uses may be legitimate purposes under exceptions and limitations. This article is consistent with current Canadian law.
The U.S., Singapore, and Peru support a provision granting rights holders stronger rights over Internet retransmission of television signals. The provision states:
No Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal
Canada – along with Vietnam, Malaysia, New Zealand, Mexico, Chile, Brunei, and Japan – all oppose the provision.
The DMCA’s anti-circumvention rules (often referred to as digital lock rules) make it into the chapter with restrictions that extend beyond those required by the WIPO Internet treaties. Earlier opposition to mandatory criminal penalties for some circumvention has disappeared as the countries now agree that it is a requirement. The TPP permits some exceptions (there are some found in Canadian law), subject to strict limitations.
In addition to the anti-circumvention rules, there are also provisions on rights management information. Canada currently stands alone in opposing mandatory criminal penalties for rights management information violations (for example, making available copies of works knowing that rights management information has been removed). If Canada caves on the issue, the digital lock and rights management information provisions in the Copyright Act would require amendement by adding new criminal penalties.
The liability of Internet service providers is currently the subject of a lengthy addendum that is complicated by different approaches in the varying TPP countries. The primary approach is to create a legal requirement for ISPs to cooperate with anti-infringement activities in return for limits on liability. The key requirements include a notice-and-takedown system similar to that found in the United States. However, there are also flexibilities included for other countries and a complete carve-out for Canada.
Given that the Canadian government invested significant political capital in the new notice-and-notice system, Canada and the U.S. have proposed an annex to the IP chapter that exempts countries from the ISP requirements provided they have rules that look a lot like the current Canadian copyright rules. These include a notice-and-notice system, a provision creating liability for those that enable infringement, and a search engine content removal provision. It is worth noting that several countries, including Chile, Vietnam, Brunei, and Peru oppose the concept of an annex to address the legal system of one country.
There is potentially one critical additional requirement that would be added to Canadian law – website blocking. The provision currently states that the country would “induce”
Internet service providers carrying out the function referred to in paragraph 2(c) to remove or disable access to material upon becoming aware of a decision of a court to the effect that the person storing the material infringes copyright in the material.
The word “induce” is bracketed, suggesting that there is still some disagreement on the legal requirement associated with the issue. It is not clear what “induce” means in this context, but it seems likely that the U.S. is pushing Canada to create a new website blocking requirement in return for acceptance of the notice-and-notice system.
Copyright Misuse and Abuse
Virtually all countries support a provision that allows for compensation where a rights holder has abused the enforcement powers. The proposal states:
Each Party shall ensure that its judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide the party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney’s fees.
The lone holdout? The U.S., which opposes the provision.
There remains a significant dispute over the inclusion of statutory damages. The U.S. wants all countries to be required to have them. Many TPP countries, including New Zealand, Japan, Mexico, Australia, Brunei, and Malaysia, oppose a mandatory requirement. Canada already has statutory damages within the law.
There remains considerable disagreement over the border measures provisions. Having just established new rules in Bill C-8 (the anti-counterfeiting bill), Canada is clearly opposed to reopening the issue. It has therefore proposed adding language clarifying that the rules do not apply to “grey market” goods (ie. goods legally sold first in another country and exported elsewhere) or to in-transit shipments that are destined for another country. There are still many proposals in this section with some attempts to find compromise among the various TPP parties.