As the negotiations on the Trans Pacific Partnership continue in Hawaii, the Electronic Frontier Foundation has published a guest post I wrote on the implications of copyright term extension for Canada. The EFF has also launched a campaign urging Canadians to speak out on the issue. With Prime Minister Harper stating today that Canada “cannot be left out” of the TPP, it seems increasingly likely that the government will cave on copyright term extension in order to be part of the TPP.
The post states:
The Trans-Pacific Partnership (TPP) negotiations have attracted considerable attention in Canada in recent weeks as the political consequences of dismantling agricultural protections loom large with a national elections scheduled for the fall. Much of the case for caving on those issues focuses on concerns that failing to join the TPP will leave Canada out of a major trading block. Yet the reality is that Canada already has free trade agreements with nearly half of the TPP countries, including the U.S., Mexico, Chile, Peru, and South Korea. Moreover, Canada has engaged in free trade agreement negotiations with Japan and Singapore.
Free trade agreements with the likes of Brunei and Malaysia might provide some modest benefits to Canadian businesses, but Canadian trade interests are already well-covered within much of the TPP community. Indeed, the costs of the TPP are a steep price to pay given the incremental gains that come from free trade access to a handful of additional countries.
This is particularly true for an issue that in recent months has fallen off the public’s radar screen: copyright.
Reports last year from Wikileaks showed that Canada was the strongest opponent to TPP intellectual property demands from the United States, signalling its opposition to a proposal 56 times, more than any other country. The strongest opposition came in the patents, enforcement, trademarks, and copyright sections.
Why oppose so many U.S. demands?
Simply put, the U.S. wants Canada to eviscerate many of the recent reforms found in copyright and counterfeiting legislation. These demands focus on enhanced criminal liability for copyright infringement, eliminating the Canadian approach to Internet service provider liability, extending the term of copyright protection, and expanding patent protection. Canadian negotiators have thus far resisted many of the proposed changes, offering alternatives that are compatible with current domestic law.
An extension to the term of copyright would be particularly problematic, coming on the heels of an extension in the copyright term for sound recordings due to behind-the-scenes lobbying by the music industry. The sound recording term extension came without any public discussion or consultation, despite the fact that other studies have found that retroactive extension does not lead to increased creation and that the optimal term length should enable performers and record labels to recoup their investment, not extend into near-unlimited terms to the detriment of the public. For Canadian consumers, the extension could cost millions of dollars as works that were scheduled to come into the public domain will now remain locked down for decades.
The same is true should Canada extend the term of copyright for all works as part of the TPP. The term of copyright in Canada is presently life of the author plus an additional 50 years, a term that meets the international standard set by the Berne Convention. The issue of extending the term of copyright was discussed during the 2009 national copyright consultation, but the Canadian government wisely decided against it. Further, the European Union initially demanded that Canada extend the term of copyright in the Canada-EU Trade Agreement, but that too was effectively rebuffed.
From a policy perspective, there is no credible evidence that term extension will do anything other than leave Canadians with 20 years of no new works entering the public domain. Indeed, many economists have examined the issue and concluded that extending the term simply does not create an additional incentive for new creativity. Moreover, studies in other countries that have extended term have concluded that it ultimately costs consumers as additional royalties are sent out of the country. Given the potential to make works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to Canadian literature and history.
Some have speculated that a possible TPP agreement comes at the worst possible time politically since the deal will likely mandate major changes in the Canadian economy just as politicians are campaigning for re-election. Yet that is precisely why this may be the best time to put the issues squarely on the table. With the Conservatives, NDP, and Liberals battling for votes, now is the time to demand answers on where the parties stand on the TPP intellectual property provisions.
To date, each has offered carefully crafted, largely evasive answers on their general views of the TPP. Comments about “acting in the best interests of Canadians” or refraining from comment until the final deal is disclosed, is not good enough. As politicians go door-to-door in search of votes, it is time to ask all candidates and political parties about their views on specific TPP issues including copyright term extension, patent reforms, and intellectual property enforcement.