Canada had been lobbying to enter the Trans-Pacific Partnership (TPP) agreement, and its efforts were seemingly paid off with an exclusive invite to the secretive nine-country trade agreement in June. There is no doubt that the TPP will affect many areas of the Canadian economy from agriculture to manufacturing, but the agreement would also regulate intellectual property rights and that could have big consequences for Internet users’ freedoms.

Unfortunately, the exact provisions negotiated in the TPP are still not known. In the meantime, EFF and other public interest groups have used every possible opportunity to provide analysis and inputs to policy makers about the intellectual property chapter and its impact on digital rights. We interviewed Professor Michael Geist to capture some of the main Canadian concerns specifically related to some of the most controversial intellectual property issues present in the trade agreement.

EFF: How can TPP affect Internet users in Canada? Are you concerned with the "three-strikes" approach?

Geist: If the TPP were to adopt a three-strikes approach, this would run completely counter to current Canadian law and repeated assurances from the Canadian government that it does not believe such an approach strikes the right balance in copyright. The recent Canadian copyright reforms adopted a notice-and-notice approach—which many believe does a better job of preserving free speech online than the US notice-and-takedown system. Despite consistent pressure from rights holders to add a penalty element to notice-and-notice that could include account termination, the government repeatedly insisted that it had no plans for Internet termination. If the TPP were to impose such an approach, it would undo much of the balance the government tried to strike during the most recent round of reforms.

EFF: Is circumventing DRM (digital rights management) a crime in Canada? How would TPP affect users and consumers rights if DRM rules are adopted?

Geist: While Canada has adopted restrictive anti-circumvention rules modeled after the US DMCA, they do not include criminal provisions for individual users. Moving toward criminal penalties for non-commercial circumvention would require changes to current Canadian law and would similarly run counter to repeated assurances from government officials that it had no plans to do so. In fact, government MPs [members of parliament] and ministers often quickly corrected commentators who inaccurately claimed that individuals could face criminal sanction for circumvention.

EFF: A recent court decision has recognized that users' rights are as important as copyright holders' rights. Would TPP change that?

Geist: It could. The USTR has made much of its inclusion of a limitations and exceptions clause. However, the current Canadian fair dealing rules as interpreted by the Canadian Supreme Court as "users' rights," offer far greater flexibility for consumers and innovative businesses. If the USTR proposal were adopted, it could start the process of restricting users' rights, contrary to Canada's highest court.

EFF: Canada passed a copyright reform law, Bill C-11, in June. Why has Canada adopted a notice-and-notice system? If Canada joins TPP, would it reject the notice-and-takedown system the USTR is pushing for in order to move all countries to a DMCA-like system?

Geist: Canada has gone through several copyright reforms and each has adopted the notice-and-notice approach. The approach has been used on an informal basis for many years in Canada and statistics indicate that it is very effective in educating users about the limits of copyright law without the need for draconian sanctions. Obviously, the TPP would pressure Canada to adopt notice-and-takedown, which experience suggests raises free speech concerns. Other TPP members have also adopted notice-and-notice (i.e. Chile), so I would expect to see opposition to an attempt to create universal notice-and-takedown.

EFF: Do you have any other thoughts on TPP?

Geist: What is striking about this round of negotiations is that the Canadian delegation is again excluded from the discussions. The terms of entry were very severe and there are real questions about the value of the TPP and the significant costs, particularly in the intellectual property arena.

Specifically, given Canada’s late entry into the TPP process, the US was able to extract two onerous conditions that Prime Minister Stephen Harper downplayed as the “accession process.” First, Canada will not be able to reopen any chapters where agreement has already been reached among the current nine TPP partners. This means Canada has already agreed to be bound by TPP terms without having had any input. Since the TPP remains secret, the government can’t even tell us what has been agreed upon. Second, Canada has second-tier status in the negotiations as the US has stipulated that Canada will not have “veto authority” over any chapter. This means that should the other nine countries agree on terms, Canada would be required to accept them.

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Additional Resources:

Michael Geist "ACTA Lives: How the EU & Canada Are Using CETA as Backdoor Mechanism To Revive ACTA"

InfoJustice "TPP’s Effects on the IP Law of Canada and Mexico"