The Trans-Pacific Partnership (“TPP”) agreement pages of both the Office of the United States Trade Representative and the White House display an understandable, if not provocative, logo extolling that the trade deal is “Made in America”. For a trade deal whose negotiations spanned the length of President Obama’s term in office, this is hardly surprising: with the end of his Administration on the horizon, the President is seeking to galvanize public and political support for an initiative he has long championed. However, in the context of a deal said to “set the rules for the 21st century for trade” between 12 countries of differing levels of economic development, such a US-centric system should raise some concern. In the case of Canada and more specifically Canadian copyright law, the TPP’s merits must be measured according to the domestic needs and realities of the country’s existing industries as well as its maturing digital economy. The Government of Canada should ensure that flexibilities and exceptions available in the TPP are creatively employed to mitigate concessions made to trading partners, which international trade agreements necessarily entail.
Critics of the TPP have disparaged the agreement for serving the interests of large US-based corporations. World Bank chief economist, Clinton Administration advisor, and Nobel laureate Joseph E. Stiglitz wrote an open letter to the TPP negotiators denouncing that the working text was held “secret from the public (even though the details are accessible to hundreds of advisors to big corporations)” and that the treaty “proposes to freeze into a binding trade agreement many of the worst features of the worst laws in the TPP countries, making needed reforms extremely difficult if not impossible”. In Canada, innovative entrepreneurs including former Blackberry/Research in Motion co-CEO Jim Balsillie (who is now helping create a tech-focussed lobby group, the Canadian Council of Innovators) argue the TPP IP measures are designed with the interests of American enterprises in mind.
The copyright and related rights sections of the TPP Intellectual Property Chapter largely cohere with existing Canadian law (Copyright Act (R.S.C., 1985, c. C-42)) and obligations under other international treaties. As indicated in Global Affairs Canada’s Technical Summary of Negotiated Outcomes, the TPP “Provides protection and enforcement of copyrights and related rights, reflecting or building upon the World Intellectual Property Organization Internet Treaties. Canada ratified the Internet Treaties in 2014.” As well, Global Affairs Canada notes that the TPP “Reflects key aspects of Canada’s regime, including: Canada’s Notice-and-Notice regime regarding Internet service providers’ role in addressing online copyright infringement; protection and enforcement to prevent the circumvention of technological protection measures and the removal of rights management information; and Canada’s copyright exceptions and limitations framework.”
A close reading of the Copyright Act and the TPP IP Chapter demonstrates that current Canadian copyright law will not need to be significantly altered to be in line with the TPP. Additionally, IP lawyer and adjunct Osgoode Law School professor Barry Sookman has pointed out “the TPP leaves the parties with flexibility to maintain or establish exceptions”.
This flexibility is important, especially in situations where the TPP copyright sections and Canadian law differ, as these divergences could impact efforts to further develop a vibrant digital economy in Canada. If the TPP is ratified and goes into force, Canada’s digital economy will need to be designed to exploit the flexibilities and exceptions built into the TPP to suit the needs of the Canadian public as well as the business sector.
Changes: Copyright Term Extension and TPM/RMI Enforcement
One significant divergence between Canadian law and the TPP is found in TPP Article 18.63, which requires that the term of protection “shall be not less than the life of the author and 70 years after the author’s death”. This section would extend Canada’s current copyright term by 20 years. The only exception is found in the case of “a sound recording in which the performance is fixed is published before the copyright expires” (C-42, 21(1)(b)),, a section of Canadian law recently changed to “the copyright continues until the earlier of the end of 70 years after the end of the calendar year in which the first such publication occurs and the end of 100 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs”.
Canadian law would also need to change to adhere to the technological protection measures (“TPMs”) of the TPP. Existing Canadian law states no person shall circumvent TPMs or provide or market services to do the same (C-42, 41(1)). These anti-circumvention provisions prevent the “manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component” (C-42, 41(1)(c)) designed, produced, or marketed primarily for the purpose of circumventing TPMs. Exceptions are made in the case of ensuring technological interoperability (C-42, 41(12)(1)) as well as law enforcement and national security purposes (C-42, 41(11)).
The TPP (18.68) reinforces and extends the provisions of the Copyright Act with respect to TPMs as well as rights management information (“RMI”) (18.69). Similar to existing Canadian law, the TPP offers civil and criminal remedies and penalties for a person either knowingly engaging in or “having reasonable grounds to know” that they were engaging in the breaking the so-called digital locks. The Copyright Act (C-42, 42(3.1)) and the TPP IP Chapter (18.68) both provide for criminal penalties for willfully circumventing TPMs for commercial or financial gain, while excepting non-profit libraries, museums, archives, and educational institutions. In contrast to the Copyright Act, the TPP also extends these penalties to the protection of RMI (18.69), which are information pertaining to the authorship and ownership of a work. While the TPP allows for domestically-tailored limitations to be enacted with respect to TPMs “through a legislative, regulatory, or administrative process” (18.68(4)), this concession is not extended to RMIs, where legislated exceptions are limited to cases of “law enforcement, essential security interests or other related governmental purposes, such as the performance of a statutory function” (18.69(2)). Restricting the ability to alter or remove RMIs for non-commercial purposes can prevent users to modify works even in accordance with fair dealing exceptions.
The Changes in Context
The TPP not requiring significant alterations to Canadian copyright law is both positive and a negative. The TPP reflects the priorities and interests of existing United States businesses and industries, restricting the ability of the Government of Canada and other parties to the Agreement to adapt and modify their existing copyright law in the future without re-negotiating the agreement itself. This will prevent the TPP parties from responding to changing technological circumstances and alternative business practices, which could help encourage future entrepreneurship and innovation or to reflect domestic priorities. The TPP establishes an international framework for copyright law and related rights based on existing corporate realities. However, the merits of these laws as written can be questioned according to whether or not they are desirable or designed for and in line with the interests of prevailing corporations and business practices.[1]
For example, the extension of copyright terms is controversial due to the fact that longer rights periods delay the addition of content into the public domain, add burdens and costs to consumers, and help extend the transfer of wealth to rights holders at the disservice to the public good[2]. A recent report for New Zealand’s Ministry of Economic Development estimates consumer costs to be NZ$55million per year.
Similarly and with respect to TPMs, McGill University law professor David Lametti, now the new Parliamentary Secretary of International Trade, has argued that TPMs represent “a serious conceptual flaw or incoherence”, which “could overwhelm the copyright balances” (p. 327).
Lawyers and academics have warned that there is significant room for interpretation with respect to the copyright sections of the TPP and that International Trade Minister Chrystia Freeland should look to negotiate side agreements to clarify aspects of the TPP and mitigate against negative aspects of the agreement. Issues remain to complicate the ratification of the TPP in the US and elsewhere. If or when the TPP comes into force, Minister Freeland and Parliamentary Secretary Lametti should be proactive and work to ensure that the Government of Canada has the domestic policy space to interpret international trade obligations and the ability to revise Canadian copyright law to foster a digital economic policy, which serves the best interests of Canadian citizens and stakeholders. The Copyright Act requires that the law is reviewed every five years (C-42, 92). With this in mind as well as the fast-changing realities of the digital economy, the Government of Canada should actively engage with partner Parties to amend the agreement as necessary and in accordance with the TPP’s final provisions (30.2).
The ‘Made in America’ approach of the TPP helps extend and reinforce the economic and market-based concerns of American companies and industries. Such a move threatens to fortify Canadian dependency on American copyright protected exports and limit Canadian corporations’ ability to disrupt the digital economic business practices of dominant American firms. As I have argued elsewhere, in order for Canada to continue to compete with international companies and develop a digital economy that responds to and builds from the emerging realities of the 21st Century, the Government of Canada must be proactive and work to retain and utilize copyright and related rights flexibilities to serve the best interest of Canadians and the economic viability of innovative and domestically grown businesses and business practices.
[1] For further information, see the “Trouble with the TPP” series from University of Ottawa law professor Michael Geist, the Canada Research Chair in Internet and E-Commerce Law.
[2] In a report prepared for Industry Canada, Abraham Hollander (Department of Economics, Université de Montréal) finds that extending the copyright terms has an “insignificant impact on the number of works created in Canada,” may slightly increase the costs to consumers, and “will likely contribute in a small way to an outflow of royalties from Canada” (Executive summary, para. 2).
Joseph F. Turcotte is a Graduate Student Member of IPOsgoode and a PhD Candidate (ABD) in the Communication & Culture Program (Politics & Policy) at York University. His research focuses on the role of knowledge, information, data, and intellectual property in the functioning of knowledge-based and digital economies. He can be reached via Twitter at https://twitter.com/joefturcotte.