The 2012 Canadian copyright reform law featured several “made in Canada” provisions that the Conservative government touted as striking a better balance than rules found elsewhere. At the top of the list was the notice-and-notice system for Internet providers. Minister James Moore (then of Canadian Heritage and later Industry) specifically cited the Canadian system as an example of how Canada had “rejected the American style approaches on massive parts of our legislation.” Yet a close reading of the leaked version of the Trans Pacific Partnership intellectual property chapter suggests that Canada may just have agreed to establish a copyright takedown system.
The preservation of the notice-and-notice was a top copyright priority for the Canadian government, so much so that it caved on copyright term extension and implemented digital lock rules that were widely criticized by the Canadian public. However, the negotiators may have failed to keep a notice-and-takedown system out of Canada. Section I of the copyright chapter creates a U.S. style notice-and-takedown system. The Canadian solution was to create a special annex that provides an alternative to the U.S. approach. While the annex was designed specifically for Canada, it would appear that it fails to prevent copyright takedowns from coming to Canada.
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The final Trans Pacific Partnership intellectual property chapter leaked this morning confirming what many had feared. While the Canadian government has focused on issues like dairy and the auto sector, it caved on key copyright issues in the agreement. As a result, works will be locked out of the public domain for decades at a cost to the public of hundreds of millions of dollars. Moreover, the government will “induce” Internet providers to engage in content blocking even where Canadian courts have not ruled on whether the content infringes copyright. As a result (and as expected – this was raised years ago), the government’s “made in Canada” approach to copyright – which it has frequently touted as representing a balanced approach – faces a U.S. demanded overhaul. In fact, even as other countries were able to negotiate phase-in periods on copyright changes, the Canadian negotiators simply caved.
The biggest change is a requirement to extend the term of copyright from life of the author plus 50 years to life plus 70 years. The additional 20 years will keep works out of the public domain for decades. The New Zealand government estimates that this change alone will cost NZ$55 million per year for a country that is one-ninth the size of Canada. Moreover, New Zealand was able to negotiate a delayed implementation of the copyright term provision, with a shorter extension for the first 8 years. It also obtained a clear provision that does not make the change retroactive – anything in the public domain stays there. Malaysia also obtained a delay in the copyright term extension requirement.
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Hubert Lacroix, the president of the CBC, recently placed the future of the Canada’s national public broadcaster on the electoral map with comments aimed sparking a renewed debate on future funding models. Lacroix disputed claims that low ratings are to blame for the CBC’s financial struggles, instead pointing to the need to consider alternative fee schemes, including new levies on Internet providers or supplementary charges on television purchases.
While disagreement over CBC funding is as old as the broadcaster itself, the more uncomfortable discussion for the CBC is its coverage of the current election campaign – particularly its approach to national debates and political party advertising – which raises troubling questions about its relevance in the current media environment.
My weekly technology law column (Toronto Star version, homepage version) suggests that most would agree that the CBC features an excellent group of reporters and boasts insightful analysts for its panel discussions. However, rather than working to make itself an invaluable resource for the election, the CBC has been unnecessarily restrictive in its broadcasting choices and in the use of its content.
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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:
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The Trans Pacific Partnership negotiations concluded early this morning in Atlanta with the 12 countries reaching agreement on the remaining outstanding issues. The U.S. quickly posted a summary of the TPP and the Canadian government has followed with its own package on the deal. At a just-concluded ministerial press conference, the ministers noted that this is one step in a longer process. The text itself must still be finalized and then each country will have its own rules before signing onto it. In the U.S., there is a review period with the full text, so this will be a 2016 issue. In Canada, new treaties must be tabled for review in the House of Commons, so there will be a Parliamentary review.
With the election only two weeks away, that means that there will be no text to review before the national vote. Instead, Canadians will face a barrage of TPP claims:
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