Michael Geist About Full CV Photos Contact Writing Blog Books Chapters Scholarship Reports Newsletters Columns Columns Archive Teaching Regulation of Internet Commerce Technology Law Internship Global Technology Law Speaking Video Podcasts/Audio News Interviews Conferences Government Committee Testimony Keynote Speaking Tech Law Topics ACTA CETA Copyright Internet Governance Jurisdiction Lawful Access Net Neutrality Privacy Spam Surveillance Telecom TPP Connect Join my Facebook page Follow @mgeist Join me on Google+ Subscribe to my RSS feed Email me Connect on LinkedIn Pinned Posts in Pinterest 07290126 by SumofUs (CC BY 2.0) https://flic.kr/p/vKwD5e News The TPP Copyright Chapter Leaks: Canada May Face Website Blocking, New Criminal Provisions & Term Extension August 5, 2015 KEI this morning released the May 2015 draft of the copyright provisions in the Trans Pacific Partnership (copyright, ISP annex, enforcement). The leak appears to be the same version that was covered by the EFF and other media outlets earlier this summer. As such, the concerns remain the same: anti-circumvention rules that extend beyond the WIPO Internet treaties, additional criminal rules, the extension of copyright term, increased border measures, mandatory statutory damages, and expanding ISP liability rules, including the prospect of website blocking for Canada. Beyond the substantive concerns highlighted below, there are two key takeaways. First, the amount of disagreement within the chapter is striking. As of just a few months ago, there were still many critical unresolved issues with widespread opposition to (predominantly) U.S. proposals. Government ministers may continue to claim that the TPP is nearly done, but the parties still have not resolved longstanding copyright issues. Second, from a Canadian perspective, the TPP could require a significant overhaul of current Canadian law. If Canada caves on copyright, changes would include extending the term of copyright, implementing new criminal provisions, creating new restrictions on Internet retransmission, and adding the prospect of website blocking for Internet providers. There is also the possibility of further border measures requirements just months after Bill C-8 (the anti-counterfeiting bill) received royal assent. Given the extensive debate on copyright during the 2012 reforms, the TPP upsets the balance the Canadian government struck, mandating reforms without public consultation or debate. The government has granted itself the power to continue to negotiate the TPP during the election period, but all the major parties should publicly declare where they stand on these issues. Further discussion on key provisions are posted below. Copyright Term Unsurprisingly, the U.S.wants all TPP countries to ensure that their copyright term of protection is at least life of the author plus 70 years. That would require countries such as Canada, Japan, New Zealand, and Malaysia to extend their terms by 20 additional years beyond the international standard found in the Berne Convention. The length of term within the TPP is currently in square brackets, suggesting that countries have still not reached a final decision (though expectations are that Canada will cave on the issue). The Importance of the Public Domain The general provisions section of the IP chapter contains a notable dispute between Canada and the U.S. over the public domain. There is an article that emphasizes the importance of taking into account the interests of rights holders, service providers, users and the public. Canada and Chile have proposed additional language to acknowledge “the importance of preserving the public domain.” The U.S. and Japan oppose the reference. Limitations and Exceptions The copyright provisions include an article on limitations and exceptions that references “criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.” There is also a footnote recognizing the Marrakesh Treaty and one that acknowledges that commercial uses may be legitimate purposes under exceptions and limitations. This article is consistent with current Canadian law. Internet Retransmission The U.S., Singapore, and Peru support a provision granting rights holders stronger rights over Internet retransmission of television signals. The provision states: No Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal Canada – along with Vietnam, Malaysia, New Zealand, Mexico, Chile, Brunei, and Japan – all oppose the provision. Anti-Circumvention Rules The DMCA’s anti-circumvention rules (often referred to as digital lock rules) make it into the chapter with restrictions that extend beyond those required by the WIPO Internet treaties. Earlier opposition to mandatory criminal penalties for some circumvention has disappeared as the countries now agree that it is a requirement. The TPP permits some exceptions (there are some found in Canadian law), subject to strict limitations. In addition to the anti-circumvention rules, there are also provisions on rights management information. Canada currently stands alone in opposing mandatory criminal penalties for rights management information violations (for example, making available copies of works knowing that rights management information has been removed). If Canada caves on the issue, the digital lock and rights management information provisions in the Copyright Act would require amendement by adding new criminal penalties. ISP liability The liability of Internet service providers is currently the subject of a lengthy addendum that is complicated by different approaches in the varying TPP countries. The primary approach is to create a legal requirement for ISPs to cooperate with anti-infringement activities in return for limits on liability. The key requirements include a notice-and-takedown system similar to that found in the United States. However, there are also flexibilities included for other countries and a complete carve-out for Canada. Given that the Canadian government invested significant political capital in the new notice-and-notice system, Canada and the U.S. have proposed an annex to the IP chapter that exempts countries from the ISP requirements provided they have rules that look a lot like the current Canadian copyright rules. These include a notice-and-notice system, a provision creating liability for those that enable infringement, and a search engine content removal provision. It is worth noting that several countries, including Chile, Vietnam, Brunei, and Peru oppose the concept of an annex to address the legal system of one country. There is potentially one critical additional requirement that would be added to Canadian law – website blocking. The provision currently states that the country would “induce” Internet service providers carrying out the function referred to in paragraph 2(c) to remove or disable access to material upon becoming aware of a decision of a court to the effect that the person storing the material infringes copyright in the material. The word “induce” is bracketed, suggesting that there is still some disagreement on the legal requirement associated with the issue. It is not clear what “induce” means in this context, but it seems likely that the U.S. is pushing Canada to create a new website blocking requirement in return for acceptance of the notice-and-notice system. Copyright Misuse and Abuse Virtually all countries support a provision that allows for compensation where a rights holder has abused the enforcement powers. The proposal states: Each Party shall ensure that its judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide the party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney’s fees. The lone holdout? The U.S., which opposes the provision. Statutory Damages There remains a significant dispute over the inclusion of statutory damages. The U.S. wants all countries to be required to have them. Many TPP countries, including New Zealand, Japan, Mexico, Australia, Brunei, and Malaysia, oppose a mandatory requirement. Canada already has statutory damages within the law. Border Measures There remains considerable disagreement over the border measures provisions. Having just established new rules in Bill C-8 (the anti-counterfeiting bill), Canada is clearly opposed to reopening the issue. It has therefore proposed adding language clarifying that the rules do not apply to “grey market” goods (ie. goods legally sold first in another country and exported elsewhere) or to in-transit shipments that are destined for another country. There are still many proposals in this section with some attempts to find compromise among the various TPP parties. Share this: More Related posts: Reports Indicate Canada Has Caved on Copyright Term Extension in TPP Talks Canadian Government Amends “Caretaker Rules” To Give Itself Power to Continue Negotiating TPP Canada Caves on Copyright in TPP: Commits to Longer Term, Urge ISPs to Block Content Tags: copyright / isp liability / notice and notice / tpp 22 Comments David Collier-Brown says: August 5, 2015 at 9:16 am And I wonder how the proponents would deal with requirements that contradict the constitution or the rule of law. Can a sitting government remove the right to punish a party” who has abused enforcement procedures”? On the face of it, that would be a law to permit a part to make a false or fraudulent statement to the court, to obtain a particular service. Of course, the proponents may simply not *care* about the rule of law or the courts (;-)) Pingback: The TPP Copyright Chapter Leaks: Canada May Face Website Blocking, New Criminal Provisions & Term Extension | Our New World pat donovan says: August 6, 2015 at 8:09 am Total transparency. (Except for them. biz is gonna LOVE that) total collection (private photos are public knowledge) except for, etc total enforcement (except for) the web got totaled, period. control or destroy. and prob’ly both. region one censorship zone antics includ relase of collected info? Preston says: August 6, 2015 at 8:53 am Michael can you comment on why all of Canada’s national newspapers are refusing to cover any of this and instead focusing on minor side-shows of this deal like agriculture and dairy? Will says: August 6, 2015 at 9:10 am Because our media are functional illiterates, JK says: August 7, 2015 at 1:39 pm Because, like with the European countries, all this MUST be shrouded in secrecy & backroom deals. WE, THE PEOPLE (to use the phrase) have absolutely bugger all to say about it. YOU SHALL DO WHAT THE USA WANTS!!! dgrb says: August 14, 2015 at 2:41 pm Yes, because of idiots like the one I met at a BBQ a few weeks ago. He believes that “all treaties” are negotiated in secret and trusts his government to do the right thing. This guy also reckons NAFTA was a good thing – because he was able to go and work in the USA. Indigo Prosody says: August 6, 2015 at 9:17 am Woe Canada! Questions: Can this profiteering piece of chicanery [TPP] be opted out of by Canada should we be fortunate enough to get a minority government in October? Is Quebec going to accept this attack on the dissemination of their cultural heritage in all media formats? Are First Nations subject to a TPP Accord? I haven’t read nor heard mention of any First Nation representation or consultation? AISTR they were/are not subject to the rules imposed by the NAFTA Accord? Does Stephen Harper pay the royalties on the on the copyrighted rock songs he performs at Conservative Conventions? . . . and so the ‘UnderNet’ begins . . . Pingback: #TPP -- The Living Blog Pingback: The passing scene – August 6, 2015 | Phil Ebersole's Blog djnforce9 says: August 6, 2015 at 11:20 am Wow, this bill just reeks of corporate greed. Nothing here helps consumers in any way (even the public domain part becomes irrelevant due to the copyright extension). Basically it just makes it easier for big businesses to deprive us of what should have been public domain years ago in order to capitalize off it further and also making it easier to attack and bankrupt individuals on a whim over copyright infringement just like what happens in the USA. Why our supposedly democratic government even allows these rubbish bills in is beyond me. David Collier-Brown says: August 6, 2015 at 11:29 am Follow the money. If Mr Harper want to keep his job, he has to spend heavily on campaigns. Therefore the folks who pay for that, call the shots. It’s not a true democracy, just an oligarchy with a democratic layer. Jean Cretien tried to get the money out, but Mr Harper reversed that, arguably at the urging of his funders… robinottawa says: August 6, 2015 at 11:49 am Thanks for the info, Michael. (Goodbye democracy!) cogniq brain says: August 6, 2015 at 11:49 am Thanks for a marvelous posting! I seriously enjoyed reading it, you are a great author.I will make certain to bookmark your blog and may come back very soon. I want to encourage you to ultimately continue your great posts, have a nice afternoon! Daryl Rybotycki says: August 6, 2015 at 2:16 pm Looks like the TPP is too far from completion to be a non-election issue. YAY! With better than even odds (IMHO) that Mr Harper is going to be voted out this time, his TPP involvement under Caretaker Rule will be the kind of legacy Canadians will not appreciate far into the future… Byte says: August 6, 2015 at 7:58 pm I demand $250,000.00 in compensation for all of my content that will hit the public domain 20 years later than I anticipated when I bought it. It’s fine to decline, because then there will also be no compensation when all the Old Typewriter Era Folk are dead and we change the copyright term to 10 years. John Rue says: August 9, 2015 at 10:47 pm What ever is decided will need to be approved by Parliament right? because many clauses would be in clash with local laws. eagle99 says: October 5, 2015 at 10:28 am Harper owns Parliament and the Senate, and this TTP agreement is meant to control the media, making it easier to create false flags and shutdown and control what videos are posted like for example live streams and videos that show protests. Those boxes that provide free tv thru addons like jailbroken devices like apple tv are on the list too, the internet will no longer be an individual Right. JV says: August 19, 2015 at 9:19 pm Interesting >”No Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal” That would have an interesting effect on Canadian Cable and Telephone companies as “Cable Providers”. Many American channels are picked up with Antenas near the border and sent over the internet to the head end or other places across the country. I wonder how Shaw, Rogers etc would compete if they could no longer provide those signals. Of course they could cut a deal with the Americans and we could all just pay more for some thing that is free over the air for many. David Collier-Brown says: August 20, 2015 at 7:49 am As you note, that’s a prohibition of a perfectly good technology to use for the original “cable tv” service, once known as “community antenna tv” Pingback: TPP agreement poses serious threat to global Internet users - It's Our Future Pingback: 6 reasons why you need to carefully read the small print on Harper’s Trans-Pacific Partnership deal | Ecocide Alert Recent Posts The Trouble with the TPP, Day 20: Unenforceable Net Neutrality Rules January 29, 2016 The Trouble with the TPP, Day 19: No Canadian Side Agreements to Advance Tech Sector January 28, 2016 Why Canadian Telecom Companies Must Defend Your Right to Privacy January 28, 2016 Why Telecoms Must Defend Your Right to Privacy January 28, 2016 The Trouble with the TPP, Day 18: Failure to Protect Canadian Cultural Policy January 27, 2016 Recent Columns Why Canadian Telecom Companies Must Defend Your Right to Privacy January 28, 2016 The Battle Over the Future of Broadband in Canada: Mayors Tory & Watson v. Nenshi January 12, 2016 Tech Law in 2016: Previewing Some of the Tough Policy Choices January 5, 2016 The Letters of the Law: 2015 in Technology Law and Policy December 30, 2015 The Battle Over Uber: Mapping Out a Regulatory Compromise December 15, 2015 Recent Talks × × × The Trouble With the TPP Day 1: U.S. Blocks Balancing Objectives 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" Day 6: Price of Entry Day 7: Patent Term Extensions Day 8: Locking In Biologics Protection Day 9: Limits on Medical Devices & Pharma Data Collection Day 10: Criminalization of Trade Secret Law Day 11: Weak Privacy Standards Day 12: Restrictions on Data Localization Requirements Day 13: Ban on Data Transfer Restrictions Day 14: No U.S. Assurances to Canada on Privacy Day 15: Weak Anti-Spam Law Standards Day 16: Intervening in Internet Governance Day 17: Weak E-commerce Rules Day 18: Failure to Protect Canadian Cultural Policy Day 19: No Canadian Side Agreements to Advance Tech Sector Open Books Law, Privacy and Surveillance in Canada in the Post-Snowden Era (University of Ottawa Press, 2015) The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (University of Ottawa Press, 2013) From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (Irwin Law, 2010) In the Public Interest: The Future of Canadian Copyright Law (Irwin Law, 2005) Get Postings via Email Like me on Facebook Archives August 2015 S M T W T F S « Jul Sep » 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Michael Geist email@example.com This web site is licensed under a Creative Commons License, although certain works referenced herein may be separately licensed. 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