Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP

Copyright

The Trouble With the TPP, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage

Price of Entry, one of the early Trouble with the TPP series posts, discussed some of the conditions of entry for Canada into the TPP negotiations. These included the absence of “veto authority”, which meant that Canada could not hold up any chapter if it was the only country opposing a provision. This ultimately had a significant impact on the intellectual property chapter, where Canada had little choice but to cave on several issues.

Conditions of entry were not the only disadvantage faced by the Canadian negotiators. According to an internal email I recently obtained under the Access to Information Act, Canadian officials were aware that they were at a disadvantage relative to the U.S. in the late stages of the negotiations. The email dated July 9, 2015, was sent to Kirsten Hillman, Canada’s lead TPP negotiator, and Christine Hogan, the International Trade Deputy Minister. It notes that the U.S. had cleared access to the full negotiating text for a wide range of advisors, including business groups and public advocates, but infers that Canada had not done the same. It continues:

I hope the political side lets you do something similar or at least hold technical briefings, or the US will effectively drive the narrative and put you at a disadvantage.

February 19, 2016 — 20 comments — News

treaty enforcement by Sarah Deer (CC BY 2.0) https://flic.kr/p/4AfLUo

The Trouble With the TPP, Day 25: The Treaties Within the Treaty

This week’s signing of the TPP in New Zealand provides a useful reminder that a potential ratification means committing to far more than just one (very large) trade agreement. One of the Troubles with the TPP is that the intellectual property chapter requires all countries to ratify or accede to as many as nine international IP treaties. In other words, the treaties within the treaty are a core part of the obligations that come with TPP.

Article 18.7 specifies that all countries have already ratified or acceded to three IP treaties: the Patent Cooperation Treaty, Paris Convention, and Berne Convention. More notably, there are as many as six additional treaties that must be ratified or acceded in order to ratify the TPP:

February 5, 2016 — 2 comments — News

The Trouble With the TPP, Day 24: Missing Balance on IP Border Measures

The day after Canada signed the TPP (and a Leger poll found huge opposition to the agreement’s IP and ISDS provisions), the shift toward consultation and study can continue in earnest. Chrystia Freeland, Canada’s Minister of International Trade, used the signing to emphasize once again that signing is not the same as ratifying and that the government is committed to a robust Parliamentary and public review of the agreement.

The Trouble with the TPP series continues today with another example of the lack of balance in the text. An earlier post noted how in the TPP rights holders’ provision are often mandatory, while those for users are treated as optional. The lopsided approach is also evident in the border measures rules. This week I discussed the expansion of border measures provisions without court oversight, which could lead to customs officials being asked to make difficult legal assessments on whether to detain goods entering the country.

February 4, 2016 — 1 comment — News

Fair Access: Striking the Right Balance on Education and Copyright

Academic Matters, a semi-annual publication that explores issues related to higher education, has just published a pair of essays on education, fair dealing, copyright, and collective licensing. Roanie Levy, the Executive Director of Access Copyright, wrote an essay in support of the role of her copyright collective. I wrote the other essay, arguing that emerging forms of access for copyrighted works lessens the value of the Access Copyright licence.

The full piece – Fair Access: Striking the Right Balance on Education and Copyright – can be found here. I conclude that:

any [copyright law] review must account for the millions being paid by educational institutions for access and the modest interpretations of fair dealing law in Canada, which have resulted in copying guidelines that are still more restrictive than those found in some other countries. Indeed, a fair review of the current system reveals that the problem facing Access Copyright is not that copies are not valued, but rather that in light of new forms of access and the evolution of the law, its licence is no longer valuable.

January 22, 2016 — 2 comments — News

Laboratory by Derek Bruff (CC BY-NC 2.0) https://flic.kr/p/ieiWeh

Access Copyright Demands Higher Royalties Due to Education Investment in Technology

When the Supreme Court of Canada issued its SODRAC v. CBC decision last fall, critics warned that the decision may be anti-technology. The majority of the court ruling included a paragraph in which it suggested that users that invest in new technologies may be required to share some of the benefits with copyright holders:

Where the user of one technology derives greater value from the use of reproductions of copyright protected work than another user using reproductions of the copyright protected work in a different technology, technological neutrality will imply that the copyright holder should be entitled to a larger royalty from the user who obtains such greater value. Simply put, it would not be technologically neutral to treat these two technologies as if they were deriving the same value from the reproductions.

The danger with the decision should be immediately obvious as it creates disincentives to invest in new technologies. I argued in a post on the decision:

January 19, 2016 — 1 comment — News