The Trouble with the TPP series has featured several posts on the impact of the agreement on copyright law, including copyright term extension and changes to the digital lock rules. The potential changes to Canadian copyright law do not end there, however. For the next three days, I will focus on concerns arising from the TPP’s damages provisions that might restrict future Canadian copyright policies or require legislative change.
The first involves the TPP damages requirements associated with the anti-circumvention rules. As with many aspects of the TPP, the rules get very complicated, very quickly. The analysis starts with the TPP requirements. Article 18.68 establishes the rules for technological protection measures. The mandatory penalties for circumvention can be found in Article 18.84 (17):
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Yesterday’s Trouble with the TPP post focused on the possibility that the agreement could restrict the ability for the Quebec government to regulate online gambling, as it is currently seeking to do in Bill 74. While that might be a good outcome – the Quebec bill is ill-advised and sets a dangerous precedent – it raises the question of whether a trade agreement is the right way to dictate provincial laws.
In fact, the TPP leaves behind a complex array of regulations for services industries that is almost certain to result in unintended consequences. Many trade agreements feature obligations to specific service sectors based on commitments from negotiating parties. These are relatively clear and make it easy for business to understand the new rules and for governments to identify their regulatory requirements. The TPP adopts a much different approach that is likely to lead to confusion and regulatory complexity. It features a series of generally applicable restrictions or requirements for services (the big four are national treatment, most favoured nation, market access, and no local presence requirements) and then seeks to exclude specific sectors in the hope of identifying problems with the general rules. As the Quebec gambling example illustrates, however, there are invariably new sectors or new issues that fall through the cracks.
Another possible complication could come from demands to regulate ride sharing services such as Uber.
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Earlier this month, the British Columbia government unveiled a new $15 million music fund to support the local music industry. The fund matches a similar Ontario initiative that has doled out nearly $30 million over the past two years with a commitment from Premier Kathleen Wynne to make the Ontario Music Fund a permanent program to support the industry.
The millions of taxpayer dollars earmarked for the music industry represents a major success for the industry lobby, which shifted several years ago from focusing on digital copyright reform to identifying new sources of government financial support.
My weekly technology law column (Toronto Star version, homepage version) notes that despite the industry accolades, the Ontario program suffers from a surprising lack of transparency with virtually no public information on how the money is actually spent. Moreover, according to documents obtained under provincial access to information laws, the Liberal government has exaggerated the impact of the first round of funding with the creation of relatively few new full-time positions and limited international investment in the province.
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Appeared in the Toronto Star on February 21, 2016 as Secrecy Around $30M Ontario Music Fund Strikes Wrong Notes Earlier this month, the British Columbia government unveiled a new $15 million music fund to support the local music industry. The fund matches a similar Ontario initiative that has doled out […]
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Last year, the Quebec government introduced legislation that would require Internet service providers to block access to unlicensed online gambling sites. It provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The Quebec bill, which is currently before the provincial legislature, is a terrible idea that has been opposed by ISPs and consumer groups. The government views this initiative as a revenue enhancing measure because it wants to direct gamblers to its own Espacejeux, the Loto-Québec run online gaming site. The mandated blocking legislation is unprecedented in Canada and if enacted, it will surely be subject to legal challenge, including the possibility of a constitutional challenge.
The legal challenge may not be limited to constitutional issues, however. The Quebec bill may also be blocked by the TPP, which may be a good outcome, but raises the question of whether a trade agreement is the right way to dictate provincial laws.
How might the TPP apply to provincial online gambling regulation?
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