What the TPP means for copyright law in Canada

By Justin Ling Web Only

What the TPP means for copyright law in Canada

Photo licensed under Creative Commons by StockMonkeys.com

Despite initial fears about the international trade deal, the final text of the Trans-Pacific Partnership appears to have taken into account some of the criticism of the more heavy-handed language that had been initially contemplated on issues dealing with data localization, and the introduction of a U.S. notice-and-takedown copyright system.

One section, however, spells a significant shift for Canadian copyright law, and that’s the extension of copyright life in Canada. 

According to final text of the deal, released last week by New Zealand, the fears that the deal would compromise recent changes to Canada’s domestic copyright regime — fears based on leaked drafts of the deal, which, up until November, was a secret — were ultimately addressed by some late-stage negotiation.

As was pointed out by Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, initial drafts of the deal required signatory countries 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,” according to the draft. 

Ultimately, that appears to have been removed. “The released text has been amended to limit the provision to domestic court rulings ensuring that only Canadian court rulings would apply,” wrote Geist last week. “This is a positive change that better reflects current law.”

Re-orienting Canadian law to allow for the removal or disabling of copyright-infringement would be a significant change from the system carefully crafted by the departed Harper Government, whereby — rather than giving internet service providers, search engines, or hosting domains the power to proactively takedown material possibly in violation of copyright — copyright holders, or their agents, must petition the offending users’ ISPs, who are then obligated to turn around and inform the user. That process must continue for several rounds of letters before the ISP aids the copyright holder in taking legal action.

The system is seen as a compromise between Canada’s previously liberal copyright regime and the demands of American copyright holders.

The fear was that the Americans were not interested in compromise — instead, looking to force Ottawa to adopt the same notice-and-takedown regime that it maintains. As Geist notes, Washington walked back on that plan.

Another section of the TPP deal that worried internet advocates was language around data localization.

Language in the technical summary of the deal, released by Ottawa, confirmed worries from privacy advocates: the deal’s E-Commerce section “prevents governments in TPP countries from requiring the use of local servers for data storage,” the summary reads.

Nova Scotia and British Columbia both have laws that limit where their personal data can live — the rules stipulate that sensitive information, like health-care data, must remain in Canada. The federal government maintains similar rules for data that pertains to Canada’s national security, which includes wide swaths of procurement information.

The final deal, however, contained much softer language.

“Each Party shall allow the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person,” the deal reads, adding the caveat “Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with [the previous paragraph] to achieve a legitimate public policy objective, provided that the measure: is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and does not impose restrictions on transfers of information greater than are required to achieve the objective.”

That standard appears considerably more generous to jurisdictions like British Columbia and Nova Scotia, and may certainly allow for Ottawa’s federal data regulations.

The language around data localization amounts to a mixed bag for privacy advocates, especially those who are — perhaps justifiably — paranoid over NSA spying. The caveats allowing for data localization rules, so long as it serves a valid public policy purpose, were never laid out prior to the deal being unveiled. Yet, skepticism remains over how international tribunals will adjudicate challenges to those goals.

“For particularly sensitive user data, regulating cross-border transfer of that data or its storage on vulnerable overseas servers may be a valid policy option,” the Electronic Frontier Foundation notes in a review of the deal, although they add “the E-Commerce chapter does not prohibit recourse to this option altogether, but imposes a strict test...a test that would be applied by an investment court, not by a data protection authority or human rights tribunal.”

But the one section that hasn’t changed much between the leaked drafts and the eventual deal was the copyright life extension. 

Under the deal, all artistic works will either maintain a copyright life of 70 years after first publication, or 70 years after the death of the author.

That change was already implemented for sound recordings, thanks to last year’s budget. The new Trudeau Government will need to bring the rest of Canadian copyright law in line with the TPP.

Leaked drafts suggested that Canada was fighting to keep that protection to 50 years but, apparently, failed.

“After a decade of consultation and debate resulting in a new copyright bill in 2012 (which despite its faults was generally regarded as a compromise), it is ironic that the government has traded so much away with so much damage to user’s rights, freedom of expression and the open internet,” writes Sam Trosow, Associate Professor of Law at the University of Western Ontario.

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