The New Zealand government posted the official Trans Pacific Partnership text today after years secret negotiations and occasional leaks of the text. It is an enormous deal with dozens of side letters between countries – Canada alone has eight side letters on intellectual property with seven TPP countries – that will require considerable study.
From a copyright perspective, the TPP IP chapter leaked soon after the deal was concluded and the chapter looks largely consistent with that document. There is a notable change involving the Internet provider and host takedown rules, however. I earlier blogged that the chapter included a takedown provision not found in Canadian law that would have required blocking content based on being made aware of a court order finding infringement. I noted that the provision would have allowed decisions from other countries to effectively overrule Canadian law. The released text has been amended to limit the provision to domestic court rulings ensuring that only Canadian court rulings would apply. This is a positive change that better reflects current law. It does point to the danger of negotiating in secret, where potential concerns go unaddressed without the opportunity for expert review. Given the size of the deal, it seems likely that there will be many more instances of poorly drafted provisions that raise unintended consequences.
Unchanged from the leaked text is the confirmation of the extension of the term of copyright to life of the author plus an additional 70 years. This marks a 20 year extension in the term of copyright, dealing a massive blow to access to Canadian heritage and resulting in hundreds of millions in cost. For example, there are 22 Governor-General award winning fiction and non-fiction authors whose work will not enter the public domain for decades. These include Margaret Laurence, Gabrielle Roy, Marian Engel, Marshall McLuhan, and Donald Creighton.
The list of winners whose works were scheduled to enter the public domain over the next 20 years, but will now wait until at least 2037 (assuming a 2017 reform date):
- Igor Sergeyevich Gouzenko (The Fall of a Titan)
- Winifred Estella Bambrick (Continental Revue)
- Colin Malcolm McDougall DSO (Author, Execution)
- Germaine Guèvremont (The Outlander)
- Philip Albert Child (Mr. Ames Against Time)
- Gabrielle Roy (The Tin Flute)
- Jean Margaret Laurence (The Stone Angel/ A Jest of God)
- Marian Engel (Bear)
- Hugh Garner (Hugh Garner’s Best Stories)
- James Frederick Church Wright (Slava Bohu)
- Laura Goodman Salverson (Confessions of an Immigrant’s Daughter)
- Edgar Wardell McInnis (The Unguarded Frontier)
- Evelyn M. Richardson (We Keep a Light)
- William Sclater (Haida)
- Marjorie Elliott Wilkins Campbell (The Saskatchewan)
- William Lewis Morton (The Progressive Party in Canada)
- Josephine Phelan (The Ardent Exile)
- Donald Grant Creighton (John A. Macdonald, The Young Politician)
- Frank Hawkins Underhill (In Search of Canadian Liberalism)
- Herbert Marshall McLuhan (The Gutenberg Galaxy)
- Noah Story (The Oxford Companion to Canadian History and Literature)
- Francis Reginald Scott (Essays On the Constitution)
In addition to Canadian authors, there many well-known international figures that will be kept out of the public domain such as John Steinbeck, Martin Luther King, Andy Warhol, Woody Guthrie, and Elvis Presley. The damage to the public domain in Canada is huge and stands as one of the worst aspects of the TPP’s intellectual property chapter.