The initial Canadian press coverage on the conclusion of the Trans Pacific Partnership negotiations has unsurprisingly focused on the dairy sector, with word that the government plans to effectively create a milk tax by transferring billions of dollars to dairy farmers without any evidence of loss. Lost in the coverage are the copyright and privacy implications of the deal. From a copyright perspective, it is notable that the Canadian government has sought to downplay the TPP, releasing a summary that suggests that it is consistent with current law. The government’s description of the copyright provisions in the TPP state:
• Provides protection and enforcement of copyrights and related rights, reflecting or building upon the World Intellectual Property Organization Internet Treaties. Canada ratified the Internet Treaties in 2014.
• Reflects key aspects of Canada’s regime, including:
◦ Canada’s Notice-and-Notice regime regarding Internet service providers’ role in addressing online copyright infringement;
◦ protection and enforcement to prevent the circumvention of technological protection measures and the removal of rights management information; and
◦ Canada’s copyright exceptions and limitations framework.
Moreover, officials told the Wire Report, claiming “what we were able to conclude in the TPP is fully consistent with Canadian law and policy, and included in that is Canada’s position or Canada’s regime pursuant to the recently-adopted Copyright Modernization Act.”
Yet based on the summaries from other countries, this does not appear to be accurate. For example, here is what the New Zealand government says is required as part of the TPP:
TPP harmonises intellectual property rules across the 12 countries which has required compromise from all parties. New Zealand currently has a 50-year copyright period. However, half the TPP countries, and almost all OECD countries, have a 70-year period for copyright works. TPP requires New Zealand to move to 70 years as well, but allows for a transition to do this over time. This change could benefit New Zealand artists in some cases, but the benefits are likely to be modest. Extending the copyright period also means New Zealand consumers and businesses will forego savings they otherwise would have made from books, music and films coming off copyright earlier. The net cost of extending New Zealand’s copyright term from 50 to 70 years will be small to begin with and increases gradually over 20 years, reaching a relatively constant level after that. Over the very long term, including the initial 20- year period, the average annual cost is estimated to be around $55 million.
Canada also currently has a copyright term of life plus 50 years (as does Japan, Malaysia, and Vietnam among other TPP countries). With the required extension in the term, Canada will be similarly required to extend the term of copyright. This is not a small change as the term extension will keep works out of the public domain in Canada for decades. Interestingly, Canada has not conducted similar economic analysis of the cost of the term extension, but if New Zealand’s estimate is accurate, the cost to the public will easily exceed $100 million per year for a country with a population that is nine times larger.
The inaccuracies may not be limited to copyright term. The TPP summary supplied by the United States emphasizes strong enforcement, including criminal penalties. Canada does not have criminal penalties for violations of rights management information. Does the TPP require changes to those rules? Does it require additional changes to content blocking as part of the Canadian Internet provider rules? Both provisions appeared in earlier leaked versions of the text.
Canadian copyright reform has been a highly charged, contentious issue in the past. The prospect of mandated changes through the TPP raises real concerns that Canadian government documents do little to assuage. Before rendering a verdict on whether the TPP is likely to be a good or bad deal, Canadians will need access to the text, not summary documents that may omit crucial details on what is actually in the agreement.