Leaked Trans-Pacific Partnership draft would force Canada to rework copyright, critics say

Canada would have to massively overhaul its Copyright Act just a few years after the last round of painstaking amendments, critics warn, if a secret trade and investment deal the government is negotiating is adopted with the terms outlined in a leaked draft from May that was made public this week.

What appears to be a working draft of parts of the 12-country Trans-Pacific Partnership pact, or TPP, was posted online this week by a U.S. non-governmental organization, Knowledge Ecology International, which describes itself as advocating for "access to knowledge and access to affordable medicines through intellectual property reform." 

The text posted online includes terms that would require countries to criminalize certain types of copyright infringement and to force internet service providers and search engines to take down alleged copyright-violating material or even links to it.

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Those are steps the Canadian government contemplated, and in some cases rejected, in broad amendments to the Copyright Act debated for years and finally passed in 2012, but are now being pushed by other countries involved in the TPP talks.

"If things don't go Canada's way — and on a lot of issues Canada is playing defence, is in the minority — then it's going to require a major overhaul of our copyright law," said University of Ottawa law professor Michael Geist, an expert on internet legal issues.

Geist said a section of the draft text could even require Canadian internet service providers to block access to websites that contain copyright-infringing material in response to court orders from "somewhere" else in the world.

"It's something the government had consistently rejected throughout the copyright reform process," he said.

"What if someone gets a court order saying there's some infringing content on YouTube, which I assume there is? Does that mean an ISP is now obligated to block YouTube?"

Spokespeople for International Trade Minister Ed Fast and the Department of Foreign Affairs wouldn't comment on the apparent leak or confirm that the document is genuine.

Copyright length

Other clauses in the leaked text address a major issue of contention between countries, namely how long copyright should apply to any given work before it enters the public domain and can be freely copied and distributed.

International treaties, adhered to by Canada and about half the other TPP countries, put it at the life of an author plus 50 years, but the draft deal leaves the door open to the life-plus-70-years standard heavily favoured by the United States, or even life plus 100 years. Reports have consistently suggested the final pact will opt for life plus 70 years.

"The extra 20 years is basically robbing the public domain," said Meghan Sali of OpenMedia, a citizens group that advocates for an open internet.

Sali said that kind of overhaul to Canada's law shouldn't be agreed to behind closed doors.

"Copyright is something that's normally changed with extensive public consultation, because it touches the lives of people every day, especially those using the internet."

Countries far apart

Canada's Conservative government had hoped to have the deal wrapped up before the kickoff to the federal election campaign. But the TPP draft leaked this week, dated May 11, suggests countries were still far apart on many issues just a few months ago — meaning much could change, or might have changed already.

"There's still a significant amount of disagreement, or at least was as of May, between the various countries," Geist said.

The 12 countries involved in the agreement include: Canada, Mexico, Japan, Australia, Peru, Vietnam, the United States, Brunei, Chile, Singapore, New Zealand and Malaysia.

"It's striking to see reports that the [Canadian] government expected issues to be resolved by last weekend. When you look at the text, that's not the case. Many of the issues are still square-bracketed, so there's still a lot of issues up for grabs," Geist said.

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Among the areas expected to be the most contentious in the pact are possible concessions Canada would make to soften its milk quota system that protects dairy farmers, and terms that could affect the auto industry.