Responses to Consultations on NAFTA Renegotiation and Modernization

July 20, 2017

Earlier this year the Government of Canada invited Canadians to share their views or comments on the renegotiation and modernization of the North American Free Trade Agreement (NAFTA).

Several library and information management organizations have submitted responses to the consultations, including:

• Association of Canadian Archivists (ACA) / Association des Archivistes du Quebec (AAQ)
• Canadian Association of Research Libraries (CARL)
• Canadian Council of Archives (CCA)

Association of Canadian Archivists / Association des Archivistes du Quebec

• Submission (July 18, 2017)

Extract:

The current NAFTA agreement has very few copyright provisions, and the ACA and AAQ have no comments on their current operation. However, we have serious concerns that Canada will be pressured to replicate certain problematic provisions of the failed Trans-Pacific Partnership Agreement (TPP) in a revised NAFTA agreement, particularly:

• Copyright term extension and diminishment of the public domain
• Lack of balance between owners’ rights and users’ rights

Canadian Association of Research Libraries (CARL)

• Response (July 18, 2017)

Extract:

During the upcoming negotiations, CARL therefore hopes to see Canada maintain a firm commitment to retaining the following aspects of Canadian intellectual property and privacy:

• A copyright term of protection of life plus 50 years, which is the international norm defined in the Berne treaty, and which offers rights owners a sufficient income-generating period before works become part of the public domain;
• Canada’s own application of technical protection measures, which fully adheres with the digital lock requirements of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT);
• Strong user right provisions in the Copyright Act, including fair dealing and exceptions for educational institutions, which contribute to bolstering the ongoing creation of knowledge, creativity and innovation;
• Canada’s own notice-and-notice regime, a balanced approach that protects the privacy of Internet users but has proven highly effective in discouraging digital piracy;
• Net neutrality safeguards, which are widely considered some of the strongest in the world, and which prevent telecom providers from engaging in discriminatory pricing practices; and
• An overall respect for the privacy rights of Internet users, in terms of protecting individuals’ browsing history and other online activities

Canadian Council of Archives (CCA)

Canadian Council of Archives/Conseil canadien des archives
130 Albert Street
Suite 1912
Ottawa ON K1P 5G4

Brief from the Canadian Council of Archives (CCA)
On the North American Free Trade Agreement (NAFTA)
To Global Affairs Canada,
NAFTA Consultations

The Canadian Council of Archives (CCA) has serious concerns about intellectual property issues that will be part of the upcoming NAFTA negotiations.

It appears inevitable that the intellectual property issues that will emerge during the NAFTA negotiations are the same as those that were so problematic for the Canadian archival community in the Trans-Pacific Partnership Agreement (TPPP). CCA presented a brief on April 26, 2016 to the Standing Committee on International Trade expressing our serious concerns about intellectual property issues included in the TPP. In relation to the upcoming NAFTA negotiations, we would like to call your attention to the issues outlined in that brief, which is reproduced below.

The Canadian Council of Archives was established in 1985, as a result of federal-provincial efforts to encourage and facilitate the evolution of an archival system in Canada. It is a national non-profit organization dedicated to nurturing and sustaining the nationwide efforts of over 800 archives across Canada. CCA’s membership includes provincial and territorial councils from across Canada, the Association des archivistes du Québec, the Association of Canadian Archivists, and the Council of Provincial and Territorial Archivists.

July 17, 2017

Brief from the Canadian Council of Archives (CCA)
On the Trans-Pacific Partnership Agreement (TPP)
To The Standing Committee on International Trade

Chapter 18 of the Trans-Pacific Partnership Agreement (TPP) includes important elements that have wide implications for access to Canada’s documentary heritage. Archives are the enduring source of this documentary heritage and we believe it is essential that we present our views and respond to questions from the Standing Committee on International Trade since these matters have great significance for services the Canadian archival network provides to the public.

Our major concern with Chapter 18 of the TPP is the mandatory extension of the term of copyright protection from life of the author plus 50 years to life of the author plus 70 years. We also have concerns about orphan works, with the proposed restrictive changes in the anti-circumvention rules for technological protection measures (TPMs), and with overall balance between creator/owner and user rights.

Term Extension

Extension of the term of copyright protection will lead to immediate diminished access of Canadian documentary heritage for a period of 20 years. In the past, archival holdings were mainly accessible for research within the walls of our institutions. But in the digital environment the vast majority of Canadians search for information about themselves, their families, their institutions and their society on the Internet, in multi-media works and in specialized electronic and print publications. To meet the needs of the current communications environment archives carry out large digitization projects that allow us to make our holdings available on our websites, providing access not only to those who can visit our reading rooms, but rather to all Canadians and to researchers worldwide. These digitization projects are often linked to materials that are in the public domain because there are major problems associated with identifying, locating, and getting permission from copyright owners for much of the material in our holdings. The new term of protection would mean there would be a period of 20 years during which no new works will enter the public domain. This would have a dramatic effect on new digitization projects, thereby diminishing access of our documentary heritage to the general public.

Orphan Works

The copyright owners in many archival holdings are unknown and/or cannot be located – they are “orphan works”. Determining ownership and the term of copyright protection are essential steps for archives to make our holdings available on our web sites. The ongoing problems of orphan works will only become exacerbated by the extension of the term of protection. These orphan works fall by the wayside on the Information Highway of the 21st Century. Important chunks of the Canadian experience fall into a black hole where access is severely limited. Researchers have to travel to an archival institution, often far away in another city or province, to use the material on-site. Without information about the identity of the creator and his/her date of death, the term of copyright protection is unknown, and the black hole extends into the future with no definite expiry date. Term extension will only make this longstanding problem even worse.

Term extension will clearly have a deleterious effect on public access to archival holdings in Canada. The present term of life of the author plus 50 years is in keeping with the Berne Convention. We do not see evidence that there are positive effects to trade or for the direct economic benefit of creators by extending the present term of protection.

TPMs

Archivists also have concerns about the digital locks provisions in TPP Article 18.68. These provisions are even more restrictive than current Canadian law, which already presents difficulties for circumvention for non-infringing purposes such as making preservation copies for digitally locked materials that are in obsolete formats.

Conclusion

We believe it is important to do more than pay lip service to the well-established principles of balance of rights and obligations of producers/copyright holders and users in copyright matters. Throughout Chapter 18 the TPP expresses strong support of the rights of copyright owners while undermining user rights. And Although Article 18.66 states that “Each party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations and exceptions”, this is scant support for the important principle of fair balance. Article 18.15 of the TPP states: “The Parties recognize the importance of a rich and accessible public domain.” Unfortunately, the reality is that the public domain and the balanced interests of the public in Canada would be diminished by the TPP.

Chapter 18 of the TPP is not good public policy for Canada nor is it in the interests of the public good.

We believe Chapter 18 will have a very significant negative impact on making the documentary heritage of Canada available to Canadians and to researchers worldwide. The archival community welcomes the opportunity to present these concerns and discuss positive approaches to finding solutions that will ensure we are able to carry out our mandate as the enduring source of Canada’s documentary heritage.