Michael Geist

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Draft Marrakesh Treaty submitted by the Drafting Committee to the Plenary, 27 June 2013 by EIFL (CC BY 2.0) https://flic.kr/p/f25S8C

The Trouble with the TPP, Day 5: Rights Holders “Shall” vs. Users “May”

The Trouble with the TPP series concludes the first week with a look at how the TPP treats the interests of rights holders and users completely differently (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). I noted in the discussion on Internet providers that the most telling provision comes at the very end, where the parties recognize the importance of taking into account the impacts on rights holders and Internet providers. Internet users and the general public do not merit a mention as their interests do not seem to count for the purposes of a notice-and-takedown system for copyright works on the Internet.

The absence of users in the Internet provider section is not an anomaly. Throughout the TPP IP chapter, there are two distinct approaches. Where rights holders interests are concerned, the requirements are typically mandatory (ie. “shall”). Where the issue involves user rights or access, the requirements are not requirements, but rather non-mandated provisions (ie. “may”). For example, consider the international IP treaty obligations in the TPP. Article 18.7 identifies nine international IP treaties and protocols that are all requirements for TPP members (Patent Cooperation Treaty, Paris Convention, Berne Convention, Madrid Protocol, Budapest Treaty, Singapore Treaty, UPOV 1991, WCT, and WPPT). What about the Marrakesh Treaty to facilitate access to published works for the blind and visually impaired? It is relegated to a footnote with no obligation to implement:

January 8, 2016 — 10 comments — News

copyright takedown notice by Andrew Allingham (CC BY 2.0) https://flic.kr/p/bw9zNC

The Trouble with the TPP, Day 4: Copyright Notice and Takedown Rules

The Trouble with the TPP series focuses today on the TPP’s effort to regulate how Internet providers and hosts address allegations of copyright infringement on their networks and sites (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension). The goals of the U.S. and Canadian government in the negotiations were clear from the outset: the U.S. wanted to export its DMCA notice-and-takedown system to the rest of the TPP, while Canada wanted to preserve its newly created notice-and-notice approach (more on the notice-and-notice system, which does a better job of striking a balance and preserving user privacy, here). In fact, Canada rushed through the notice-and-notice system without regulations (causing major problems of misleading notices) in order to argue that it should not be required to adopt the U.S. approach.

The end result is a compromise that allows Canada to maintain notice-and-notice, but no other TPP country can adopt it in order to comply with the ISP liability and notice rules. The Canadian rules can be found in Annex 18-E, which states that the standard TPP ISP rules do not apply to a country that meets the conditions of the annex “as from the date of agreement in principle of this Agreement.” Since that date is now long passed (October 4, 2015), no other TPP country can implement the notice-and-notice system to meet its TPP obligations. It should be noted that Chile, which objected to the special treatment for Canada, obtained a similar exception for its system based on the U.S. – Chile Free Trade Agreement in Annex 18-F.

January 7, 2016 — 5 comments — News

Gutenberg Galaxy by Marshall McLuhan by no_typographic_man (CC BY-NC-ND 2.0) https://flic.kr/p/8hhvER

The Trouble with the TPP, Day 3: Copyright Term Extension

The Trouble with the TPP series continues with one of the most high profile copyright concerns associated with the TPP: mandatory copyright term extension (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks). The term of copyright in Canada is presently life of the author plus an additional 50 years, a term consistent with the international standard set by the Berne Convention. This is also the standard in half of the TPP countries with Japan, Malaysia, New Zealand, Brunei, and Vietnam also providing protection for life plus 50 years.

From a Canadian perspective, the issue of extending the term of copyright was raised on several prior occasions and consistently rejected by governments and trade negotiators. For example, term extension was discussed during the 2009 national copyright consultation, but the Canadian government wisely decided against it. Further, the European Union initially demanded that Canada extend the term of copyright in the Canada-EU Trade Agreement, but that too was effectively rebuffed with the issue of term removed from the final text.

January 6, 2016 — 7 comments — News

Crew Close-Up by benj mako hill (CC BY-SA 2.0) https://flic.kr/p/4rfbH8

The Trouble with the TPP, Day 2: Locking in Digital Locks

The Trouble with the TPP series (Day 1: US Blocks Balancing Provisions) spends the next few days examining the TPP’s copyright provisions. One of the most controversial aspects of the 2012 Canadian copyright reform process involved the anti-circumvention provisions, often referred to as the digital lock rules. The U.S. pressured Canada to include anti-circumvention rules, which were required for ratification of the WIPO Internet Treaties, within the copyright reform package. They feature legal protections for technological protection measures (TPMs, a broader umbrella that captures digital rights management or DRM) and rights management information (RMI).

There was an enormous amount of scholarly analysis on these issues throughout the reform process. For example, I wrote about the flexibility in implementing the WIPO Internet Treaties, Carys Craig wrote about the negative implications for fair dealing, Ian Kerr wrote about the broader implications of digital locks, Jeremy deBeer focused on the constitutional concerns, and Mark Perry wrote about rights management information. Moreover, David Lametti, now a Liberal MP and the Parliamentary Secretary for International Trade, wrote about the incoherence of the digital lock rules. The academic analysis was decidedly negative about the legal reforms as was the broader public, which made the issue a top priority as part of the 2009 copyright consultation.

January 5, 2016 — 2 comments — News

Protest against Bill C-51 - April 18, 2015 - Vancouver BC, Canada by Sally T. Buck (CC BY-NC-ND 2.0) https://flic.kr/p/sdxnaW

Tech Law in 2016: Previewing Some of the Tough Policy Choices

Technology law and policy continues to command the attention of the public and policy makers. My weekly technology law column (Toronto Star version, homepage version) notes that as Canada enters a new year with a new government, 2016 will be all about making tough choices on a wide range of technology law policies, including the following eight issues that are sure to generate headlines.

1. How will Bill C-51 be revamped?

Bill C-51, the Conservative government’s anti-terrorism bill, emerged as a major political issue last year as many expressed concern over the lack of oversight and the implications for privacy and civil liberties. The Liberal government has committed to reforms, but has been generally coy about what those changes will be. New accountability mechanisms will undoubtedly feature prominently in any reform package, but the substantive amendments to the bill remain a mystery.

January 5, 2016 — Comments are Disabled — Columns