Canada’s year-long copyright review has thus far featured dozens of witnesses from creators such as singer Bryan Adams to telecom giants Bell and Telus. While the review is designed to help Canadian policy makers craft a roadmap for future reforms, the release of the U.S.-Mexico-Canada Agreement (USMCA), the successor to NAFTA, represents a significant detour as it contains a detailed intellectual property rights chapter that effectively cedes many key issues to U.S. trade negotiators.
My Globe and Mail op-ed notes that in the weeks leading up to the conclusion of the trade pact negotiations, most of the attention was focused on supply management and the dairy sector, the threat of tariffs on the automotive industry, and the future of dispute resolution provisions. Yet once the secret text was released just after midnight on Sunday, the mandated reform to Canadian copyright law became more readily apparent.
Leading the way is a requirement to extend the term of copyright protection from the current term of the life of the creator plus 50 years to the life of the creator plus 70 years. The additional 20 years of protection will effectively lock down the public domain in Canada for two decades, with no new copyright expiry on works until 2040 (assuming the agreement takes effect in 2020).
The Liberal government emphasized its commitment to excluding Canadian cultural policy from the ambit of the agreement (which it did subject to an exception for simultaneous substitution of U.S. broadcasting), but extending the term of copyright will have a far greater impact by reducing public access to Canadian cultural heritage. Moreover, with studies indicating that the term extension could add hundreds of millions to education costs, 20 extra years of copyright protection will not come cheaply.
The government has touted a U.S. concession that will allow Canada to retain its notice-and-notice system for allegations of copyright infringement, but that was the only bright spot in a chapter that otherwise restricts future policy flexibility. The limits are particularly noticeable with respect to Canada’s anti-circumvention rules, which provide legal protections for digital locks found on electronic books or DVDs. They will be subject to trade rules that severely limit the ability for policy makers to craft exceptions that ensure reasonable consumer access to the content for which they have paid. Canada previously insisted on the suspension of similar provisions in the Comprehensive and Progressive Trans Pacific Partnership Agreement.
The IP chapter will also require Canada to re-write legislation that was passed only a few years ago. For example, Canada’s anti-counterfeiting measures are destined for change after the USMCA included requirements to grant customs officials the power to seize suspect shipments without a court order, even if the goods are in-transit and not destined to remain in Canada.
While the U.S. has exported some of its most restrictive copyright laws to Canada, its flexible rules that lie at the heart of its innovation policy are nowhere to be found, placing U.S. companies at a distinct advantage over their Canadian counterparts. For example, fair use, a staple of U.S. law, is not included in the USMCA. This creates an uneven playing field, where U.S. companies and creators rely on an open system of exceptions for innovative technological uses (such as text and data mining for artificial intelligence), while Canadians are confined to a limited set of purposes identified in the Copyright Act.
Similarly, U.S. rules that mandate that all government works are freely available fall outside the deal, meaning that Canada may retain its outdated crown copyright model that vests full copyright in government works.
As the copyright review continues, the government will need to reassess its approach in light of the USMCA. First, the scope of the review should be expanded to consider the ramifications of the deal. This should include assessing whether there is room for flexible implementations of the new obligations.
Second, the review recommendations must account for a significant shift in the copyright balance in Canada as a result of the treaty. Rights holders have been lobbying for new rights or more limited exceptions. The USMCA effectively gives rights holders a massive gift with 20 years of additional protection alongside stronger enforcement measures. Restoring the copyright balance will mean rejecting a further distortion of the balance and instead considering expanding copyright exceptions.
Canada’s new trade agreement means that the U.S. will effectively write some of the key provisions in the next copyright law. If Innovation, Science and Economic Development Minister Navdeep Bains is to retain a made-in-Canada approach to copyright, it is time to take back the pen and restore the balance lost in the fine print of the USMCA.