Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
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.
Netflix is enormously popular in Canada with millions using the online video service. While the Canadian version of Netflix has improved the scope of available titles since it launched, there are still differences with the U.S. service, leading some subscribers to use virtual private networks to mask their address and access U.S. Netflix. Are those subscribers “stealing” something? The Globe and Mail’s Simon Houpt apparently thinks so.
This weekend he wrote a column titled Even the Content Creators are Stealing Content, which focused on content creators who unapologetically download television shows or use virtual private networks to access U.S. Netflix from Canada. Accessing the U.S. Netflix service is common in many countries including Canada (see stories on Australia, New Zealand, and the U.K.). Houpt argues that accessing the U.S. Netflix from Canada deprives creators of their fair share of earnings and make the creation of future shows less likely:
Paying for the Canadian service means your money goes to whoever holds the Canadian rights for the shows on Netflix. If you’re watching the U.S. service, the rights holders – that is, those who pay the creators to make the shows you’re actually watching – aren’t getting their fair share. That means they’re less likely to help get the next round of shows or movies green-lighted, making it harder for artists to get their projects off the ground.
Yet while the legal issues associated with accessing U.S. Netflix may be in a legal grey zone, the argument that creators are not paid seems wrong.
Trade agreements have emerged in recent years as one of the federal government’s most frequently touted accomplishments. Having concluded (or nearly concluded) free trade deals with the likes of the European Union and South Korea, senior government ministers such as International Trade Minister Ed Fast and Industry Minister James Moore have held dozens of events and press conferences across the country promoting the trade agenda.
The next major agreement on the government’s docket is the Trans Pacific Partnership, a massive proposed trade deal that includes the United States, Australia, Mexico, Malaysia, Singapore, New Zealand, Vietnam, Japan, Peru, and Chile. While other trade talks occupy a prominent place in the government’s promotional plans, the TPP remains largely hidden from view. Indeed, most Canadians would be surprised to learn that Canada is hosting the latest round of TPP negotiations this week in Ottawa.
My weekly technology law column (Toronto Star version, homepage version) argues the secrecy associated with the TPP – the draft text of the treaty has still not been formally released, the precise location of the Ottawa negotiations has not been disclosed, and even the existence of talks was only confirmed after media leaks – suggests that the Canadian government has something to hide when it comes to the TPP.
Countries from around the world last year reached agreement on a landmark copyright treaty designed to improve access to works for the blind and visually impaired. As the first copyright treaty focused on the needs of users, the success was quickly billed the “Miracle in Marrakesh” (the location for the final round of negotiations) with more than 50 countries immediately signing the treaty.
The pact, which was concluded on June 27, 2013, established a one-year timeline for initial signatures, stating that it was “open for signature at the Diplomatic Conference in Marrakesh, and thereafter at the headquarters of WIPO [the World Intellectual Property Organization] by any eligible party for one year after its adoption.”
My weekly technology law column (Toronto Star version, homepage version) notes that in the months since the diplomatic conference, 67 countries have signed it. The list of signatories includes most of Canada’s closest allies, including the United States, European Union, United Kingdom, and France. The major developing economies such as Brazil, China, and India have also signed the agreement. Curiously absent from the list of signatories, however, is Canada.
The issue was raised in the House of Commons by NDP MP Peggy Nash, leading to the following exchange with Industry Minister James Moore:
The government today announced that there will be no additional regulations associated with the notice-and-notice rules that provide rights holders with the ability to have Internet providers forward notifications to subscribers alleging infringement. The government had delayed implementation of the rules amid a consultation on the issue. The notice-and-notice system does not require the ISP to disclose the subscriber’s personal information to the rights holder nor to takedown the content. The system, which other countries are now considering due to its effectiveness, is set to take effect on January 1, 2015.