Deadline Day To Speak Out on TPP's Copyright Term Extension
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Tuesday February 14, 2012
I've posted my submission, which includes comments on the lack of transparency with the TPP negotiations, digital locks, Internet provider liability, and copyright term, below. Another submission focused on the public domain comes from Dr. Mark Akrigg, Founder, Project Gutenberg Canada.
Re: Trans Pacific Partnership Consultation
I am a law professor at the University of Ottawa, Common Law Section where I hold the Canada Research Chair in Internet and E-commerce Law. I obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School. I am the editor of From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (2010) and In the Public Interest: The Future of Canadian Copyright Law (2005), both published by Irwin Law, the editor of several monthly technology law publications, and the author of a popular blog on Internet and intellectual property law issues. I serve on many boards, including the CANARIE Board of Directors, the Canadian Legal Information Institute Board of Directors, the Privacy Commissioner of Canada’s Expert Advisory Board, the Electronic Frontier Foundation Advisory Board, and on the Information Program Sub-Board of the Open Society Institute.
I am grateful for the opportunity to comment on Canada’s potential participation in the Trans Pacific Partnership (TPP) negotiations. I should preface these remarks by expressing my extreme concern with the lack of transparency associated with the TPP negotiations. Much like the Anti-Counterfeiting Trade Agreement that is now the subject of international criticism, negotiating such treaties behind closed doors with no authorized disclosure of draft text is enormously problematic. It raises serious democratic participation concerns and makes it exceptionally difficult to comment on substantive issues. Indeed, my concern – which I believe is shared by many Canadians – is that the draft text will only formally be released once the agreement is concluded. This will leave Canadians without a meaningful opportunity to comment on the treaty. Should Canada join the TPP negotiations, it should insist on greater transparency than has been evident to date.
On a substantive level, I would like to focus on the consultation question on “views and experiences with the protection of intellectual property rights.” In short, I believe the Canadian approach on the inclusion of intellectual property within the TPP should be to reject any attempt to exceed the international standards contained in agreements such as the Berne Convention or the WIPO Internet Treaties. While requiring compliance with these treaties may be reasonable to include within the TPP, renegotiating international copyright laws should occur in an open, transparent manner that includes all stakeholders. Establishing new standards within closed trade agreements undermines the international copyright system and made-in-Canada copyright policies.
As you are aware, a draft version of the intellectual property chapter of the TPP leaked online last year. As currently drafted, the chapter would have enormous implications on Canadian intellectual property law. With respect to copyright, it would:
I am particularly concerned with three of these issues: digital locks, term extension, and ISP liability provisions.
1. Digital Locks
Bill C-11’s anti-circumvention provisions have proven to be the most controversial aspect of the government’s copyright reform package. The current approach largely mirrors the anti-circumvention provisions found in the U.S. Digital Millennium Copyright Act, with prohibitions on both circumvention (copy and access controls) and the distribution of circumvention tools. The bill already extends far beyond requirements under the WIPO Internet treaties. A wide array of organizations have argued that the provisions should be amended to allow for greater flexibilities. While the final outcome of the bill remains unknown, the TPP could require the government to undo its current digital lock approach by adding new limitations and restrictions. These changes amount to a re-writing of the WIPO Internet treaties and run contrary to the government’s own stated claims that Bill C-11 already strikes an appropriate balance. The government should vigorously reject any provisions that would require additional digital lock restrictions.
2. Copyright Term Extension
The TPP would require countries (such as Canada, New Zealand, and Japan - all current or potential TPP members) that meet the international copyright term standard of life of the author plus 50 years to add an additional 20 years to the term of protection. The extension in the term of copyright would mean no new works would enter the public domain in those countries until at least 2033 (assuming an agreement takes effect in 2013).
While the change would obviously delay all works slated to enter into the public domain by 20 years, it is worth noting the many important authors who would be immediately affected since their works are scheduled to become public domain in the 2013 - 2033 period. The impact on Canadian culture and history is worthy of particular attention. The list of Canadian authors whose work would be blocked from entering into the public domain includes:
Project Gutenberg Canada, which publishes public domain works online, has examined its current offerings and concluded that the impact on Canadian access would be very significant. Approximately 160 artists and authors would be lost under term extension with few of their works currently commercially available. In other words, the works would simply disappear for decades, with no commercial benefit to the copyright holder but a significant loss to the public.
Moreover, term extension would not be limited to written works. The term of protection for sound recordings would be massively increased over the Bill C-11 approach, with a 95 year copyright term the typical standard. For most sound recordings, this would result in nearly doubling the term of protection. Sound recordings from the 1960s that are scheduled to come into the public domain over the next few years would remain subject to copyright protection until 2055 and beyond. The extension would result in a huge wealth transfer from Canadians and mean that millions would never see the sound recordings from the 1960 and 1970s enter the public domain in their lifetimes.
The Canadian response to term extension requirements should be unequivocal: no copyright term extension provisions in the TPP that create any requirements to exceed the requirements found in the Berne Convention.
3. ISP Liability
The leaked chapter of the TPP IP chapter indicates that implementing a notice-and-takedown approach to ISP liability may be included. Bill C-11 establishes an intermediary liability system based on a “notice-and-notice” approach. The notice and notice system involves a notification from a copyright holder - often involving movies, software, or music - claiming that a subscriber has made available or downloaded content without authorization on file sharing systems. The Internet Service Provider (ISP) forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.
While some have been critical of the notice-and-notice system (claiming that the U.S. notice-and-takedown system is more effective), the evidence to date suggests that notice-and-notice is very effective as a tool against infringement and will provide adequate protection for IP rights holders. For example, Rogers Communications, one of Canada’s largest Internet providers, advised a House of Commons committee that it processed 207,000 notices in 2010, sending those notices to about five percent of its customer base. Of the households that receive notices, only 1/3 receive a second notice. Of those that receive a second notice, only 1/3 of those receive a third notice. The Rogers data suggests that 67% of recipients (which is already only five percent of subscribers) do not repeat infringe after receiving a notice and 89% cease allegedly infringing activity after a second notice. Within two notices, about 99% of Rogers subscribers are not receiving infringement notifications.
Those numbers are very similar to data from the Entertainment Software Association of Canada, which found that 71% of notice recipients did not place an infringing file back on BitTorrent systems. Similarly, the Business Software Association told the CBC in 2007 that the notice-and-notice approach has "been most effective."
The government has been adamant that it has adopted a balanced approach on ISP liability in Bill C-11. It is correct and it should not agree to any provisions in the TPP that require a re-writing of the approach as found in the current bill.
Copyright provisions have traditionally played a very minor role in Canadian trade agreements. The TPP (along with the Canada – EU Trade Agreement) represent a very significant change that is part of a broader effort to pressure Canada to change its copyright laws. While most agree that there is a need for some reforms, discarding a made-in-Canada approach for one drafted in Brussels or through TPP negotiations raises significant concerns that implicate both current and future legislative proposals.
The Canadian approach on the inclusion of intellectual property within the TPP should be to reject any attempt to exceed the international standards contained in agreements such as the Berne Convention or the WIPO Internet Treaties. While requiring compliance with these treaties may be reasonable to include within the TPP, renegotiating international copyright laws should occur in an open, transparent manner that includes all stakeholders. Establishing new standards within closed trade agreements undermines the international copyright system and made-in-Canada copyright policies.
Tuesday February 14, 2012