The Trouble with the TPP series focuses today on the TPP’s effort to regulate how Internet providers and hosts address allegations of copyright infringement on their networks and sites (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension). The goals of the U.S. and Canadian government in the negotiations were clear from the outset: the U.S. wanted to export its DMCA notice-and-takedown system to the rest of the TPP, while Canada wanted to preserve its newly created notice-and-notice approach (more on the notice-and-notice system, which does a better job of striking a balance and preserving user privacy, here). In fact, Canada rushed through the notice-and-notice system without regulations (causing major problems of misleading notices) in order to argue that it should not be required to adopt the U.S. approach.
The end result is a compromise that allows Canada to maintain notice-and-notice, but no other TPP country can adopt it in order to comply with the ISP liability and notice rules. The Canadian rules can be found in Annex 18-E, which states that the standard TPP ISP rules do not apply to a country that meets the conditions of the annex “as from the date of agreement in principle of this Agreement.” Since that date is now long passed (October 4, 2015), no other TPP country can implement the notice-and-notice system to meet its TPP obligations. It should be noted that Chile, which objected to the special treatment for Canada, obtained a similar exception for its system based on the U.S. – Chile Free Trade Agreement in Annex 18-F.
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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.
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Last week, negotiators from around the world gathered in Ottawa for negotiations on the Trans Pacific Partnership agreement. I was fortunate to be asked to meet with many of the intellectual property negotiators as part of a side session sponsored by the Electronic Frontier Foundation on the copyright implications of the agreement. EFF’s Jeremy Malcolm and Maira Sutton write about the event here, which also included Howard Knopf and Open Media’s Reilly Yeo.
My presentation, embedded below, focused on the Canadian notice-and-notice rules for Internet service provider liability. The government recently announced that notice-and-notice will take effect in January 2015. I explained the background of the Canadian approach, how it differs from the U.S. notice-and-takedown system, and how experience demonstrates its effectiveness.
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Transport Canada has reportedly issued a DMCA takedown notice to Scribd over an on-the-record response it provided to a journalist. The move is particularly odd (though not unprecedented, see here and here) given the document was issued to a journalist and the government changed its crown copyright licence last year […]
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A new Wikileaks cable confirms
that the Conservative government delayed introducing copyright legislation in early 2008 due to public opposition. The delay – which followed the decision in December 2007 to hold off introducing a bill after it was placed on the order paper (and the Fair Copyright for Canada Facebook group took off) – lasted until June 2008. The U.S. cable notes confirmation came directly from then-Industry Minister Jim Prentice, who told U.S. Ambassador David Wilkins that cabinet colleagues and Conservative MPs were worried about the electoral implications of copyright reform: From December 2007 to mid-February, senior GOC officials and well-informed private sector contacts assured the Embassy that legislative calendar concerns were delaying the copyright bill’s introduction into Parliament. Our contacts downplayed the small – but increasingly vocal – public opposition to copyright reform led by University of Ottawa law professor Dr. Michael Geist. On February 25, however, Industry Minister Prentice (please protect) admitted to the Ambassador that some Cabinet members and Conservative Members of Parliament – including MPs who won their ridings by slim margins – opposed tabling the copyright bill now because it might be used against them in the next federal election. Prentice said the copyright bill had become a “political” issue. He also indicated that elevating Canada to the Special 301 Priority Watch List would make the issue more difficult and would not be received well.
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