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.
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In the years leading up to Canada’s entry into the Trans Pacific Partnership negotiations, there was considerable speculation about demands imposed by the U.S. For example, I wrote in 2012 about two reported demands: that Canada was stuck with any chapters concluded before entry and that it would not have any veto authority. This meant that if all other countries agreed on a particular provision, Canada would be required to accept it.
Yesterday, Industry Minister James Moore provided the first official confirmation of at least one other condition of admission to the talks: anti-counterfeiting legislation. Bill C-8, the anti-counterfeiting bill that focuses on providing new border measures provisions such as enhanced search and seizure powers for customs agents without court oversight, is really a bill about satisfying U.S. demands for TPP entry. According to Moore:
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Last year, the federal government trumpeted anti-counterfeiting legislation as a key priority. The bill raced through the legislative process in the winter and following some minor modifications after committee hearings, seemed set to pass through the House of Commons. Yet after committee approval, the bill suddenly stalled with little movement throughout the spring.
Why did a legislative priority with all-party approval seemingly grind to a halt?
My weekly technology law column (Toronto Star version, homepage version) suggests that the answer appears to stem from the appointment of Bruce Heyman as the new U.S. ambassador to Canada. During his appointment process, Heyman identified intellectual property issues as a top priority and as part of his first major speech as ambassador, singled out perceived shortcomings in the anti-counterfeiting bill.
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In late December 2009, Wikileaks, the website that publishes secret government information, posted a copy of the draft intellectual property chapter of the Canada – European Trade Agreement (CETA). The CETA deal was still years from completion, but the leaked document revealed that the European Union envisioned using the agreement to mandate a massive overhaul of Canadian law.
The leak generated concern among many copyright watchers, but when a German television station leaked the final text of the agreement last week, it contained rules that largely reflect a “made-in-Canada” approach. Why the near-complete reversal in approach on one of the most contentious aspects of a 500 page treaty?
My weekly technology law column (Toronto Star version, homepage version) notes the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.
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I participated in a panel titled The Internet, Free Trade, and Transparency: An International Perspective as part of Yale University’s Trade and Transparency in the Internet Age.
The panel was moderated by Margot Kaminski and the other participants were Peter Yu, Ante Wessels. We discussed the impact of WikiLeaks leaking a draft of Anti-Counterfeiting Trade Agreement and parts of the Trans-Pacific Partnership Agreement , another free trade agreement. Both leaks led to considerable public debate over both the content of the agreement and the negotiating process. The leaks, and their policy effects suggest there is a need for discussion of trade and transparency in the Internet Age.
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