Trans-Pacific Partnership Ministers Meet in Brunei by DFATD (CC BY-NC-ND 2.0)

Trans-Pacific Partnership Ministers Meet in Brunei by DFATD (CC BY-NC-ND 2.0)


Is the Canadian Government Misleading the Public on the TPP Copyright Provisions?

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.

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  3. Patrick Wilson says:

    Reading the NZ reporting as it is written, it will indeed affect New Zealand as it says – increasing the copyright by 20 years; however, it appears to have the opposite effect on Canada, actually decreasing the copyright in most cases. For instance, we currently have life plus 50 years, or 50 years after the death of a copyright holder as the law. If it goes to 70 years from creation of the work, as it is in the US and reads here, a work created by a 25-year old that lives to 100 will actually see their copyright expire before their death as opposed to the current system that would have i expire 50 years after they die.

  4. alexander hill says:

    Canadian negotiators caved on a wide range of other issues. While still holding out against establishing new criminal liability for the removal of “rights management information” (rules associated with Canada’s controversial protection of digital locks), Canada agreed to expanded restrictions on the importation or distribution of goods whose rights management information has been altered. Canada also dropped opposition to new copyright rules on sound recordings and trademark rules involving the use of an international classification system. It agreed to heighten border enforcement measures involving in-transit shipments of goods that merely pass through Canada without remaining in the country and to use best efforts to expand trademark protections to “scents.” There are still some unresolved issues in the Hawaii draft, particularly those involving the term of copyright (which the U.S. wants Canada, Japan, New Zealand and Malaysia to extend by an additional 20 years) and many pharmaceutical patent issues. Yet Canadian negotiators appear to have badly blundered by prematurely making important concessions but failing to close the deal. As a result, it seems likely that Canada will be forced to concede on other key issues when countries next meet to finalize the TPP.

  5. And, indeed:

    But as long as it’s not ratified, there is still hope to stop this madness. Plus I wonder why Inventors aren’t starting a riot; they “only” get 20 years of protection for inventions that sometimes took a decade to invent and perfect. Nobody has ever been able to explain to me why that’s fair and doesn’t stop inventors from inventing new inventions, but would stop artists from creating new creative works.

  6. Doreen Maguire says:

    Misleading the public is ALL, the Harper Govt has EVER done..(they won’t change their methods of operation after 10 years) .. “Double talking”, playing on words and fearmongering the Conservative “base” works for the REFORM Party.(.aka..Conservatives & Republican Party, North…)

    • Dooren

      To be fair even the Ndp and Liberals have said we more or less the same thing say we must protect our country yes it did not sit well with the extreme left but no party will win on the idea there are no threats we have no needs to check new Canadians who want to come here etc.

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