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Trans-Pacific Partnership (TPP) Agreement Public Consultations: Time To Object To Copyright Term Extension

April 8, 2016

Dr. Jean Dryden, a leading expert on Canadian copyright, is calling on the Canadian information community to use the public consultation process to express their concerns with the copyright provisions of the TPP.

Dear Colleagues,

As you may know, the Trudeau government has promised a transparent public consultation process to determine whether Canada should ratify the Trans-Pacific Partnership agreement (TPP).

The House of Commons Standing Committee on International Trade is conducting a study on the TPP to assess the extent to which the agreement, if implemented, would be in Canada’s best interests. The report on the study will be presented in the House of Commons.

Canadians are invited to provide written submissions by April 30th. Global Affairs Canada has also invited Canadians to submit their views at: TPP-PTP.consultations@international.gc.ca.

These are important opportunities to express your concerns about a deal that could affect every aspect of Canada’s economy.

There is much to criticize about the TPP; however, the copyright provisions, particularly adding 20 years to the duration of copyright, are especially troubling for archives. (If you’re interested, the final text of the TPP is available here. See Chapter 18 for the copyright provisions).

Attached is a list of the main issues that will adversely affect the archival mission if the TPP is ratified. Feel free to adapt the attached text as a starting point to express your concerns to the Committee on International Trade, to Global Affairs Canada, and to the Minister of International Trade, the Hon. Chrystia Freeland.

Regards,

Jean

Jean Dryden, MA, MLS, LLM(IP), PhD, CRM
Dryden Consulting Services

Canadian Archivists and the Trans‐Pacific Partnership Agreement

Term of Copyright and the Public Domain

The requirement that Canada extend the duration of copyright protection by 20 years is the greatest flaw in the TPP. The general term of copyright in Canada is the life of the author plus 50 years, which is consistent with the Berne Convention. The TPP requires that the term be extended to the life of the author plus 70 years and (for terms not based on a person’s life) to 70 years from first publication, first fixation, or creation. These terms exceed the international standards, and there is no evidence that longer terms serve as an incentive for the creation of new works.

Furthermore, a 20-year extension would greatly diminish the public domain. A robust public domain is essential in fostering new creativity and advancing knowledge. It provides a storehouse of raw materials that individuals can draw from to create new ideas or works. Should the TPP be ratified as is, nothing would enter the public domain for two decades. For example, the current Act provides that letters written by Prime Ministers St. Laurent, Diefenbaker, and Pearson will enter the public domain at the end of 2022, 2023, and 2029 respectively. Should the TPP be ratified, copyright in such documents would not expire until 2042, 2043 and 2049.

While section 18.15 of the TPP requires signatories to recognize the importance of “a rich and accessible public domain,” it is a hollow statement that is not backed up by any mandatory provisions that would actually support such recognition. In fact, copyright term extension runs completely counter to this goal. In the interests of the timely entry of works into the public domain, any extension of the term of copyright protection is highly objectionable.

Balance in Copyright Law

For more than a decade, the Supreme Court of Canada has, in its decisions, stressed the importance of an appropriate balance between the rights of copyright owners and the rights of users of copyrighted material. However, the TPP is all about the interests of rights holders. The provision setting out the objectives of the intellectual property (IP) chapter contains no references to important issues such as balance in IP rights, the legitimate interests of users, or promoting and preserving the public domain.

Furthermore, other provisions of the TPP undermine copyright’s fundamental balance. Provisions that serve the interests of rights holders are mandatory; those that serve users are optional. In the weakest possible language, the TPP provides that parties “shall endeavour to achieve an appropriate balance in their copyright systems.” Instead of merely “endeavouring” to achieve balance, the TPP needs substantial revision to ensure that the rights of copyright owners are appropriately balanced by adding mandatory provisions that support the interests of users.

Exceptions and Limitations

One way of achieving balance in copyright law is through a robust system of exceptions and limitations on the monopoly rights of copyright owners. Without such exceptions (“users’ rights”), users could not exploit archives for new scholarship and economic growth. Sections 18.65 and 18.66 barely acknowledge the existence of exceptions for purposes such as criticism, comment, news reporting, teaching, scholarship, research, and the like. It is essential that the existing users’ rights in the current Copyright Act not be overridden by the TPP’s mandatory provisions favouring rights holders.

Anti-Circumvention Rules

The prohibition on circumvention of technological protection measures (TPMs) is already of great concern to archivists, who may acquire such materials well after the passwords, etc. have been forgotten, or who may need to access such materials for non-infringing purposes. The TPP would require Canada to adopt a more restricted approach than our current law. Criminal penalties for circumventing TPMs or tampering with rights management information (RMI) are mandatory in the TPP, although a party “may” provide that criminal penalties will not apply to libraries, archives, or museums. The TPP also provides that a party “may” provide a general exception to the circumvention prohibition for legitimate uses, e.g., fair dealing or preservation. The TPM/RMI provisions are but one example of how the TPP undermines copyright’s fundamental balance. These optional provisions should be mandatory to provide certainty to the archival mission and to restore an appropriate balance to this agreement.

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