The Trouble with the TPP series (Day 1: US Blocks Balancing Provisions) spends the next few days examining the TPP’s copyright provisions. One of the most controversial aspects of the 2012 Canadian copyright reform process involved the anti-circumvention provisions, often referred to as the digital lock rules. The U.S. pressured Canada to include anti-circumvention rules, which were required for ratification of the WIPO Internet Treaties, within the copyright reform package. They feature legal protections for technological protection measures (TPMs, a broader umbrella that captures digital rights management or DRM) and rights management information (RMI).
There was an enormous amount of scholarly analysis on these issues throughout the reform process. For example, I wrote about the flexibility in implementing the WIPO Internet Treaties, Carys Craig wrote about the negative implications for fair dealing, Ian Kerr wrote about the broader implications of digital locks, Jeremy deBeer focused on the constitutional concerns, and Mark Perry wrote about rights management information. Moreover, David Lametti, now a Liberal MP and the Parliamentary Secretary for International Trade, wrote about the incoherence of the digital lock rules. The academic analysis was decidedly negative about the legal reforms as was the broader public, which made the issue a top priority as part of the 2009 copyright consultation.
This background is necessary since it is important to understand that the digital lock rules currently found in Canadian copyright law already represent a government decision to cave to U.S. pressure and establish reforms that go far beyond what is required under the WIPO Internet treaties. It should also be noted that when the Liberals introduced their digital lock rules in a 2005 bill, it was far more flexible and balanced than the one passed by the Conservatives in 2012. Yet despite the 2012 reforms, the TPP will require Canada to make further changes to its digital lock rules and lock Canada into a “WIPO+” model that removes the ability to restore the flexibility found in the WIPO Internet treaties. In other words, once the TPP takes effect, the restrictive digital lock rules will be locked into Canadian law.
The TPP affects both the rights management information rules and technological protection measures provisions. For rights management information, Article 18.69 of the TPP requires Canada to add criminal liability to the list of potential remedies. This marks a significant change from the 2012 copyright reform package, reflecting U.S. desire for increased criminalization of copyright law. Canada opposed the change during the TPP negotiations, but ultimately caved in the final draft (Canada remained opposed as late as the Hawaii TPP round in August 2015). There are no similar criminal requirements in the Canada – EU Trade Agreement.
For technological protection measures, Article 18.68 of the TPP contain extensive requirements for all TPP countries. Those requirements extend beyond those required by the WIPO Internet treaties. In fact, the TPP digital lock rules also go beyond those found within the Canada – EU Trade Agreement and the Canada – South Korea Trade Agreement with more restrictive rules on the creation of circumvention exceptions as well as criminal liability requirements.
The long-term implications of the TPP digital lock rules is to lock Canada into the more restrictive, less flexible standard. While our other agreements – whether the WIPO Internet treaties themselves or other trade agreements – would allow for a more flexible approach than currently found in the TPP, if the TPP takes effect, it will trump those agreements for Canadian law purposes by requiring a different standard for digital lock protection.