By The White House from Washington, DC (Foreign Leader Visits) [Public domain], via Wikimedia Commons

By The White House from Washington, DC (Foreign Leader Visits) [Public domain], via Wikimedia Commons


Canadian Trade Committee Warns Against Unbalanced U.S. IP Demands in NAFTA

The House of Commons Standing Committee on International Trade released its detailed study on the priorities of Canadian stakeholders in NAFTA earlier today. I appeared before the committee to discuss intellectual property and digital trade issues in September. The report includes notable recommendations on culture (retain the cultural exemption in NAFTA) and digital rights (ensure that digital trade provisions do not undermine Canadians’ privacy rights or security of their data, a nod to concerns over data localization and data transfer rules). It also features an important discussion on the intellectual property chapter, with clear support for retaining a made-in-Canada approach consistent with international standards.

The committee’s recommendation on intellectual property states:

That the Government of Canada, during the North American Free Trade Agreement negotiations, oppose provisions that would reduce its ability to ensure that the Canadian intellectual property regime balances the interests of right holders and users. As well, the government should work to preserve Canada’s ability to modernize its regime following domestic reviews.

The recommendation is important as it signals that the Liberal government recognizes that some of the NAFTA IP demands from the U.S. – notably including copyright term extension, increased copyright criminalization, and a notice-and-takedown system – would alter the Canadian copyright balance between rights holders and users. It is also an implicit rejection of the website blocking proposal raised by Bell, which would radically alter the copyright balance. Moreover, the emphasis on flexibility on domestic reforms reinforces that Canada should maintain the right to create its own copyright and IP laws that reflect international norms. That position is consistent with my submission before the committee earlier this year.

The NDP provided a supplemental opinion that focuses on the specific areas of copyright concern, highlighting the importance of access, supporting the notice-and-notice system, and rejecting any copyright term extension:

Canadian copyright policy must not be sacrificed at the altar of free trade. Maintaining balanced and sensible copyright policy is particularly critical in light of the fundamental connection between copyright law and the ability to exercise free expression online – through sharing knowledge, research, and art; participating in public and political discourse; contributing to the cultural commons; and inspiring, and building upon creativity. The NDP emphasizes the fact that notice-and-notice is an effective system that achieves objectives with respect to copyright infringement, while mitigating (albeit not completely) the harms that arise from notice-and-takedown.

The Canadian government, should reject any proposal to extend copyright terms beyond its current term of 50 years after the author’s death, knowing that current Canadian copyright terms are already largely in compliance with international copyright treaties.

The Conservatives also submitted a supplemental opinion, but it did not touch on the IP issues. The report confirms awareness and concern with U.S. efforts to export one-sided copyright and IP rules. Indeed, the government’s emphasis on copyright balance and the NDP’s clear rejection of copyright term extension represents a good starting position for both trade negotiations and the forthcoming domestic review of the Copyright Act.

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