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):
In civil judicial proceedings concerning the acts described in Article 18.68 (TPMs) and Article 18.69 (RMI):
(a) each Party shall provide that its judicial authorities have the authority at least to:
(i) impose provisional measures, including seizure or other taking into custody of devices and products suspected of being involved in the prohibited activity;
(ii) order the type of damages available for copyright infringement, as provided under its law in accordance with this Article;
(iii) order court costs, fees or expenses as provided for under paragraph 10; and
(iv) order the destruction of devices and products found to be involved in the prohibited activity;
There is a footnote for (ii) that states if a party has both pre-established (ie. statutory) damages and additional damages that only one is needed to comply with the requirement. The TPP also states that additional damages include “the authority to award such additional damages as they consider appropriate, having regard to all relevant matters, including the nature of the infringing conduct and the need to deter similar infringements in the future.” Canada’s additional damages provision is narrower than this language, but there are statutory damages in place.
While that is the starting point obligations for the digital lock penalties, the TPP also includes an exception that removes the possibility of damages in certain cases:
a Party may provide that damages shall not be available against a non-profit library, archive, educational institution, museum or public non-commercial broadcasting entity, if it sustains the burden of proving that it was not aware or had no reason to believe that its acts constituted a prohibited activity.
What is the Canadian issue?
There are two. First, the Canadian Copyright Act includes a similar, though not identical, damages exclusion for a library, archive, museum or educational institution at Section 41.2. The Canadian exclusion does not include public non-commercial broadcasting entities, but since the provision is permissive and not a requirement, that is TPP compliant. However, the Canadian provision is not limited to non-profit libraries (think of a commercial digital library that charges subscription fees or an online library archive) and limits the remedies solely to an injunction. The other remedies identified by the TPP cannot be ordered by the court. Given the difference between the treaty and Canadian law, there may be instances where Canada excludes the possibility damages in violation of the TPP.
Second, the Copyright Act includes another damages limitation in the anti-circumvention rules. Section 41.1(3) states:
The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened may not elect under section 38.1 to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.
This was an important provision during the copyright reform process since it sought to assure concerned Canadians that they would not face the possibility of statutory damages for private circumventions. For example, statutory damages are not available for a person that circumvents the digital locks on their DVD collection.
The TPP does not include an exception for private purposes circumvention. Rather as noted above, it requires either statutory damages or additional damages. Statutory damages are not available in this case and the additional damages available in Canada are not as broad as those required by the TPP. This would suggest that the Canadian private purposes circumvention rule could be challenged with demands that Canada implement new damages requirements for individuals who circumvent a digital lock, even for personal purposes.
(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage, Day 35: Gambling With Provincial Regulation, Day 36: Why the TPP Could Restrict Uber Regulation)