Appeared in the Toronto Star on January 11, 2015 as Why Mayor John Tory is Against Competition for Access to Affordable Fast Broadband Cities across the country have long emphasized the importance to the local economy of creating innovation hubs. There are different roads toward that goal, however, as shown […]
Archive for January, 2016
Appeared in the Toronto Star on December 21, 2015 as Why Canada’s High Drug Prices Are About to Soar Higher Patent protections for the pharmaceutical companies have been among the most controversial aspects of recent high profile trade agreements such as the Canada – EU Trade Agreement (CETA) and the […]
An examination of the Trouble with the TPP copyright provisions would not be complete without discussing how Canada reformed its law before entering the negotiations as part of the price of admission to the TPP talks (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”). The pre-TPP reforms must surely be considered part of the cost of the agreement even if proponents now argue that the TPP is consistent with (the reformed) Canadian law.
Canada was not an initial participant in the TPP negotiations. The Harper government began working on entry into the TPP in 2009, leading to a formal request for participation in the negotiations in 2011. The U.S. held a consultation on Canada’s proposed entry into the TPP a year later, resulting in the IIPA, the lead lobby group for the movie, music, and software industry, urging the U.S. government to keep Canada out of the negotiations until a copyright bill was passed that satisfied U.S. expectations. The Canadian government responded by promising to pass the law and noting that it had also signed the Anti-Counterfeiting Trade Agreement (ACTA). The U.S. demands had an enormous impact on the contents of the Canadian copyright bill, particularly the retention of restrictive digital lock rules that were at the very top of the U.S. priority list.
The Trouble with the TPP series concludes the first week with a look at how the TPP treats the interests of rights holders and users completely differently (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules). I noted in the discussion on Internet providers that the most telling provision comes at the very end, where the parties recognize the importance of taking into account the impacts on rights holders and Internet providers. Internet users and the general public do not merit a mention as their interests do not seem to count for the purposes of a notice-and-takedown system for copyright works on the Internet.
The absence of users in the Internet provider section is not an anomaly. Throughout the TPP IP chapter, there are two distinct approaches. Where rights holders interests are concerned, the requirements are typically mandatory (ie. “shall”). Where the issue involves user rights or access, the requirements are not requirements, but rather non-mandated provisions (ie. “may”). For example, consider the international IP treaty obligations in the TPP. Article 18.7 identifies nine international IP treaties and protocols that are all requirements for TPP members (Patent Cooperation Treaty, Paris Convention, Berne Convention, Madrid Protocol, Budapest Treaty, Singapore Treaty, UPOV 1991, WCT, and WPPT). What about the Marrakesh Treaty to facilitate access to published works for the blind and visually impaired? It is relegated to a footnote with no obligation to implement:
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.