Earlier this week, I appeared before the House of Commons Standing Committee on International Trade to discuss the benefits of the Trans Pacific Partnership, a proposed trade agreement involving the U.S., Canada, Australia, New Zealand, and a handful of other Asian and South American countries. My comments were critical of the proposed agreement as I focused on two issues: copyright and secrecy.  The opening comments sparked a lively debate, with the NDP MPs tabling documents I obtained under the Access to Information Act detailing inside access to TPP information for select stakeholders and the Conservative MPs alternately questioning the validity of leaked texts and providing assurances that draft text could change before the final agreement is concluded.  I’ll post the transcript once it is available.  In the meantime, my opening remarks are posted below.

Appearance before the House of Commons Standing Committee on International Trade, June 3, 2013

Good afternoon.  My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I am also a syndicated weekly columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. I have edited several books on Canadian copyright and appeared many times before committees on copyright and trade policy.  I appear before this committee today in a personal capacity representing only my own views.

I greatly appreciate the invitation as I have very serious concerns with Canada’s participation in the TPP.  I should start by noting that I am not anti-free trade.  I support the government in its efforts to explore opportunities to expand markets for Canadian businesses. That said, the TPP raises some concerns. I’d like to focus on TPP substance, particularly the copyright provisions in the draft agreement, as well as process issues.

Substance

Let me start with substantive concerns and, given the limited amount of time, I will focus primarily on the copyright provisions, though copyright is only part of broader intellectual property concerns. You heard last week from Scott Sinclair on some of the patent issues and if you are interested, I would be happy to discuss the implications of the TPP for the governance of the domain name system in Canada.

As members of the committee know, Canada recently completed a long, difficult copyright reform process.  Over a decade of debate ultimately resulted in Bill C-11. Virtually all stakeholders would say that that bill, which received royal assent last June, was imperfect. Yet it did reflect a genuine attempt at compromise with many made-in-Canada provisions that are often cited as progressive, effective, forward-looking digital copyright rules.

My single biggest concern is that the TPP will undermine the Canadian compromise on copyright and require radical changes to our national copyright law.

I should preface my analysis by noting that last year DFAIT conducted a public consultation on Canada’s potential participation in the TPP in which copyright was the top issue cited by individual respondents. No public report summarizing the responses was ever published, yet, according to documents I obtained under the Access to Information Act, the government was overwhelmed with negative comments urging officials to resist entry into the TPP and the expected pressures for significant intellectual property reforms as part of the deal.

In addition to tens of thousands of form letters and emails criticizing the TPP, the government received hundreds of individual handcrafted responses that unanimously criticized the proposed agreement. In fact, a review of more than 400 individual submissions did not identify a single instance of support for the agreement. Rather, these submissions focused specifically on copyright concerns.

Based on a leak of the draft IP chapter, let me provide four examples that lie at the heart of the public concern:

First, Canadian law now features a notice-and-notice approach on Internet provider liability.  This approach establishes the obligations for Internet providers and intermediaries when there are claims of copyright infringement and grants copyright holders powers to raise allegations of infringement with the sites and their subscribers. Moreover, it protects the privacy of subscribers and does not result in takedowns of content based on mere allegations. During the Bill C-11 debates, Canadian Heritage Minister James Moore repeatedly pointed to notice-and-notice as an example of a positive Canadian-specific approach. Yet according to leaked documents, the TPP would require Canada to drop its approach in favour of a draconian takedown system that could stifle free speech and result in the removal of content without the need for any proof of infringement.

Second, the term of protection for Canadian copyright is presently life of the author plus an additional 50 years after their death.  This term meets the international requirement as established in the Berne Convention.  The TPP would require Canada to add an additional 20 years to the copyright term.  The extension in the term of copyright would mean no new works would enter the public domain in Canada until at least 2034 (assuming an agreement takes effect in 2014). â€¨

Many important authors would be immediately affected since their works are scheduled to enter the public domain in the 2014 – 2034 period. These include Canadians such as Marshall McLuhan, Gabrielle Roy, Donald Creighton, and Glenn Gould as well as non-Canadians such as Robert Frost, CS Lewis, TS Eliot, John Steinbeck, JRR Tolkein, and Ayn Rand. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to Canadian literature and history.

Third, Canadian copyright law now includes an important distinction with respect to statutory damages as it features a cap of $5000 for all non-commercial infringements.  While the reforms have been unsuccessful in stopping thousands of potential lawsuits against individuals, they do ensure that Canadians won’t face the threat of hundreds of thousands or even millions in liability for non-commercial infringement. The government consistently argued that the reform was the right thing to do. Yet the TPP would require Canada to drop the non-commercial cap and restore statutory damages that could climb into the millions of dollars for individual Canadians.

Fourth, the digital lock rules were the most contentious aspect of Bill C-11.  The provisions were widely criticized, but the silver lining in an approach that went far beyond international requirements was that the government kept the door open in the legislation to future reforms and exceptions to the rules. Yet the TPP would close that door, increasing the penalties for circumvention and restricting the ability for Canada to create new digital lock exceptions.

The copyright provisions in the TPP threaten a Canadian compromise that took a decade to achieve and that was strongly defended by the current Conservative government.  To undo that compromise would constitute an enormous setback for Canadian sovereignty and for our long-term digital and cultural policy.

Process

I would be remiss if I did not raise process concerns involving the secrecy associated with the TPP and the creation of a two-tier approach that involves special access to TPP information for some insiders.

The TPP negotiations have been ongoing for years, yet there has still been no official release of draft text.  To conduct a hearing on the benefits of the TPP without public access to the draft text forces participants to rely on leaked information that has not been officially confirmed. Canada should be demanding that a draft text be made available for all to see.

Instead, it is deeply troubling that DFAIT has established a secret insider group with some companies and industry associations granted access to consultations as well as opportunities to learn more about the agreement and Canada’s negotiating position.

I realize that Minister Fast denied the existence of such a group when he appeared before you last month.  However, documents I obtained under the Access to Information Act indicate that the first secret industry consultation occurred weeks before Canada was formally included in the TPP negotiations in a November 2012 consultation with telecommunications providers. All participants were required to sign non-disclosure agreements.  

Soon after, the circle of insiders expanded with the formation of a TPP Consultation Group. Representatives from groups and companies such as Bombardier, the Canadian Manufactures and Exporters, Canadian Agri-Food Trade Alliance, and the Canadian Steel Producers Association all signed a confidentiality and non-disclosure agreement that granted access to “certain sensitive information of the Department concerning or related to the TPP negotiations.”

I have copies of the signed NDAs here that make specific reference to the TPP Consultation Group.

The creation of a secret TPP insider group suggests an attempt to shy away from public consultation and scrutiny of an agreement that could have a transformative effect on dozens of sectors at a time when we should be increasing efforts to gain public confidence in the talks by adopting a more transparent and accountable approach. I believe the TPP’s highly secretive and non-transparent approach runs counter to Canadian values of openness and accountability. We should be actively encouraging participants to increase TPP transparency and should lead by example by ceasing the two-tier insider approach to trade agreement information.