TPP, copyright, e-commerce and digital policy: a reply to Michael Geist

The Trans-Pacific Partnership (TPP) is a comprehensive and complex agreement. It presents major economic opportunities for Canada. It deserves, as Lawrence Herman, the former head of the Economic and Treaty Law Section of Canada’s External Affairs Department, pointed out, “careful, reasoned and balanced assessment”. Some individuals have stepped forward to do that with respect to the intellectual property and e-commerce chapters, such as:

Yet, as Lawrence Herman also noted “there’s been a flurry of media reporting and commentary, some of it breathless”.

Michael Geist doesn’t like the TPP. He has been telling Canadians it will “kill digital policy,” create a “digital policy failure,” potentially “cripple” the backbone of the innovation economy, and put health care data at risk, among other things, citing primarily the intellectual property and e-commerce chapters as the reasons why. His most recent tirades against the treaty began on October 9, 2015, when WikiLeaks published what was represented to be the final, or penultimate, copy of the intellectual property chapter. His criticisms continued up to and after the release of the final text of the TPP on November 5, 2015.[1]

Geist says that the intellectual property and e-commerce chapters of the TPP are a major digital policy failure. In fact, he goes much further. In a Toronto Star article attacking the TPP entitled “TPP Will Kill Digital Policy”, he claims that “Rules around copyright and privacy form the backbone of the innovation economy, but they could be crippled by the Trans Pacific Partnership”. He says the “Canadian negotiators adopted a defensive strategy by seeking to maintain existing national laws and doing little” “to promote some of Canada’s more innovative copyright policies in the agreement”.[2]

Michael Geist could have made his assessments about the TPP in a careful, reasoned and balanced manner. Instead, as shown below, he chose to criticize the TPP’s intellectual property and e-commerce chapters by incorrectly or misleadingly describing them, using exaggeration, and basing his criticisms on unreasonable assertions about what one could expect in a trade deal.  This matters. The potential benefits of joining the TPP are large, as are the opportunity costs of not joining.  With so much potentially at stake, Canadians and their policy makers deserve better.

Claim 1: Canada will be required to implement notice and takedown

Michael Geist’s claims

On October 9, 2015, WikiLeaks posted what was represented to be either the final, or penultimate, copy of the TPP’s intellectual property chapter. Michael Geist immediately published a blog post, Canada Caves on Copyright in TPP: Commits to Longer Term, Urge ISPs to Block Content, claiming that Canada had caved to demands from the US on copyright and had agreed to a provision in the TPP that would require Canada to amend its laws to induce Internet service providers to engage in content takedowns and blocking.[3] Geist claimed:

Canada has now agreed to induce providers to “remove or disable” access to content upon becoming aware of a decision of a court of a copyright infringement. The broadly worded provision could force Canadian ISPs to block content on websites after being notified of a foreign court order – without first having to assess whether the site is even legal under Canadian law.

Four days later, Michael Geist published another blog post entitled Why the TPP Creates a Backdoor Copyright Takedown System in Canada. He re-iterated his claims that Canadian negotiators had caved to US demands that Canada implement a US notice and takedown system.[4] He claimed the problem stemmed from a requirement in the Annex to the IP provisions, which would require Canada to:

induce Internet Service Providers carrying out the function referred to in paragraph 2(c) [providing hosting services] 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.

Geist claimed that because Canada could not fulfill this condition, Canada would have to introduce an express notice and takedown system based on the U.S. DMCA processes. Michael Geist repeated his claims that same day in a post on the digital rights activist site entitled, Geist: Why the TPP Creates a Backdoor Copyright Takedown System in Canada |

Geist’s claims were not true and they had the effect of creating a moral panic. [5] As described below, they were disseminated in the social media, in the national press, and on TV. The Globe and Mail was misled and even did an editorial about it.

Geist was plainly wrong about the TPP and notice and takedown

The basis of Geist’s claim that Canada would be required to implement a notice and takedown system was set out in his blog as follows:

The problem stems from the following requirement in the annex, which requires a country to:

induce Internet Service Providers carrying out the function referred to in paragraph 2(c) 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….

Moreover, there is an argument that the entire U.S. notice-and-takedown system will actually apply in Canada through the TPP. The annex for Canada comes with the following condition:

In order to facilitate the enforcement of copyright on the Internet and to avoid unwarranted market disruption in the online environment, paragraph(s) 3-4 shall not apply to a Party, provided that, if upon the date of agreement in principle of this Agreement, it continues to:

This condition – which requires a country to have the full system described in the annex in place upon the date of agreement in principle – was aimed at limiting the alternative approach to Canada since other countries could not create a Canadian-style system and use that approach to comply with the TPP.

The problem is that Canada does not comply at the date of agreement in principle (which has essentially passed). The Canadian government has not “induced” Internet providers to remove or disable content based on awareness of [a] court decision. In fact, it has done the opposite, promoting the fact that Canada does not have a takedown system. Given that Canada does not comply with the annex on the date of agreement in principle, it would appear that the annex cannot be used and that the U.S. DMCA notice-and-takedown approach is coming to Canada. (emphasis added)

In fact, as is plain, the draft of the TPP described by Geist contained an exception with listed conditions that were clearly drafted for the express purpose of excluding Canada from the notice-and-takedown requirement. This was something Geist claims Canada had pushed hard to keep in the TPP negotiations.[6] The conditions closely tracked provisions in Canadian law that are unique in the world. In other words, far from creating a requirement that Canada adopt a notice and takedown system, the draft of the TPP provided that Canada was the only party to the treaty who doesn’t have to do so.

Somehow Michael Geist has tried to convince the public that an exception clearly drafted expressly to allow Canada to be the only party to the TPP to avoid a notice and takedown requirement is mere surplusage – treaty window dressing with no purpose or effect. His interpretation of the Annex contradicts the most basic cannon of treaty interpretation under the Vienna Convention on the law of treaties, which states in Article 31 that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

What is astonishing is that Geist made his claims without making any reference to subsection 31.1(5) of the Copyright Act. This Section, which is set out below, has been in the Copyright Act since 2012, when the Copyright Modernization Act was proclaimed into force and is a condition which hosting providers must comply with in order to obtain the benefit of the hosting safe harbour in Subsection 31.1(4):

(5) Subsection (4) does not apply in respect of a work or other subject-matter if the person providing the digital memory knows of a decision of a court of competent jurisdiction to the effect that the person who has stored the work or other subject-matter in the digital memory infringes copyright by making the copy of the work or other subject-matter that is stored or by the way in which he or she uses the work or other subject-matter.

The wording of the condition in the Annex (Annex E to Schedule J) of the TPP practically tracks the wording of Subsection 31.1(5). In fact, in June 2005, Geist described the condition in Section 31.1(5) in Bill C-60 (a predecessor to Bill C-11 which eventually became law) using practically the same language as the wording in the Annex, and without making any reference to the order referred to having to be from a Canadian court:

The bill also provides immunity against copyright infringement for ISPs for the content that they host (Section 31.1(4)). That immunity is limited, however, since it does not apply where the ISP has actual knowledge of a court decision that the person who has stored the content on the ISPs servers has infringed copyright by doing so. (emphasis added)

When the final text of the TPP was released, the condition in the Annex was amended to further clarify that the exception only requires that the hosting provider remove or disable access to material upon becoming aware of a domestic court decision:

(e) induce Internet service providers carrying out the function referred to in Article 18.82.2(c) (Legal Remedies and Safe Harbours) [hosting providers] to remove or disable access to material upon becoming aware of a decision of a court of that Party to the effect that the person storing the material infringes copyright in the material.

After the final text of the TPP was released, Geist published another blog post noting the clarification:

From a copyright perspective, the TPP IP chapter leaked soon after the deal was concluded and the chapter looks largely consistent with that document. There is a notable change involving the Internet provider and host takedown rules, however. I earlier blogged that the chapter included a takedown provision not found in Canadian law that would have required blocking content based on being made aware of a court order finding infringement. I noted that the provision would have allowed decisions from other countries to effectively overrule Canadian law. The released text has been amended to limit the provision to domestic court rulings ensuring that only Canadian court rulings would apply. This is a positive change that better reflects current law…(emphasis added)

That post implicitly admitted that Annex E does not require Canada to implement an express notice and takedown system. But, it was not until November 15, 2015, weeks after misleading the public about this aspect of the TPP, that Geist admitted this was not the case. In a later post he unequivocally admitted that the “intellectual property chapter includes an annex that permits Canada’s notice-and-notice rules to qualify as an alternative to the TPP’s notice-and-takedown system”.

Geist also claims that the “U.S. has allowed Canada to keep its “notice-and-notice” policy for Internet providers, but on the condition that no other TPP country may adopt it.” That is not strictly true. Any other country is free to adopt notice and notice. In fact, several countries already have a notice and notice or a graduated response notice-based regime along with notice and takedown, the worldwide standard for the hosting provider safe harbour and an extremely useful public policy approach to dealing with online piracy (an approach that many argue could be improved if it was a “notice and stay down” system). Geist may well have intended to say that since Annex E of the TPP can only be fulfilled by Canada, all other parties must have notice and takedown, whether or not they also want to implement a notice and notice system. If that was the case it could have been said in a clear and less misleading way.

Claim 2: Canada will have to add new criminal sanctions to the Act to its digital lock rules

Geist claims that under the TPP, “Canada is required to add new criminal provisions to its digital lock rules”. The term “digital locks” is widely understood to refer to technological protection measures or TPMs which are used by content creators and publishers on physical media such as CDs, DVDs, e-books and other devices and in service offerings such as music and video streaming services.

The TPP requires each party to provide criminal sanctions where a person is found to have wilfully and for purposes of commercial advantage or financial gain (which may be treated under the TPP as “commercial purposes”) violated the legal protections for TPMs required by the treaty.[7]

The Canadian Copyright Act provides criminal sanctions for knowingly and for commercial purposes circumventing TPMs – in other words, for breaking digital locks. (Sec. 42(3.1)) Accordingly, Geist’s claim that the TPP would require Canada “to add new criminal provisions to its digital lock rules” is not accurate.

Geist has also claimed that the TPP will require Canada to add “new criminal liability for the removal of “rights management information”. This claim does not accurately describe the TPP’s requirement which targets violations of the rights management information (RMI) prohibitions wilfully and for purposes of commercial advantage or financial gain. In short, the provision requires sanctions against digital pirates who carry on businesses directed at content theft, a sanction that as a matter of public policy is hard to argue with.

It might be argued that Geist’s claim that “Canada is required to add new criminal provisions to its digital lock rules” was intended to refer to RMI and not TPMs. This would contradict the plain meaning of the word “lock”. Moreover, Geist, has consistently referred to “digital locks” as being synonymous with TPMs and the digital lock rules as being legislative measures prohibiting acts of circumvention or providing tools or services to circumvent TPMs.[8] Further, the general public would understand his claim as pertaining to TPMs and not to RMI. Accordingly, even if his claim could be construed to refer to RMI and not TPMs, his claim would be misleading to most people.

Claim 3: Exceptions to copyright in the TPP didn’t promote Canada’s policies

Geist claims that “there was little effort to promote some of Canada’s more innovative copyright policies in the agreement.” He says “Canadian policies that promote user generated content…or establish consumer exceptions are all missing from TPP”.

One can question whether the amendments to the Copyright Act in 2012 referred to by Geist were good policy choices or not. They were controversial and subject to much debate. They are unique internationally. But, regardless of one’s views about whether they reflected good or bad policy, one could not under any reasonable scenario have expected that these exceptions would be hard coded into the laws of the other parties as part of the TPP.

Geist’s claims that Canada’s “innovative” exceptions to copyright should have been expressly required by the TPP fails to take into account how treaties in relation to copyright are structured. For example, in relation to exceptions to infringement, conventions and treaties such as the Berne Convention, Rome Convention, TRIPS, and the WIPO Internet Treaties do not contain an exhaustive list of specifically enumerated and prescriptively worded exceptions that member states’ laws must have. Accordingly, none of those instruments specifically contain specific requirements to permit format shifting or time shifting of copyright materials.

The parties to the TPP all have differently tailored exceptions to copyright and one could not have expected a trade deal like the TPP to even attempt to harmonize all exceptions to copyright, let alone to those Canada unique to Canada. Further, if as Geist claims, the TPP’s copyright provisions were all “Made in America”, Canada would have been forced to introduce fair use, with all its attendant pros and considerable problems and uncertainty, a policy decision Canada specifically rejected despite calls to do so from Michael Geist and others.[9]

There is a strong case to be made that broad exceptions to copyright will only serve to reduce incentives for the development and dissemination of new creative works, which in turn is likely to reduce overall social welfare. Further, that the development of the digital economy requires the opposite response – namely the strengthening of copyright and the limiting of exceptions.[10] Nevertheless, whatever one’s views on the issue of broad exceptions for copyright, the TPP leaves the parties with flexibility to maintain or establish exceptions.

First, it preserved the status quo, by permitting exceptions in accordance with the internationally recognized three-step-test,[11] a test that Canada has already accepted in other international agreements including the Berne Convention, TRIPs, and the WIPO Internet Treaties.[12] This leaves the contracting parties, including Canada, the flexibility to establish exceptions they deem appropriate for their countries within the parameters of this internationally recognized framework.

Second, the TPP went even further. It mandated a requirement for balance in parties’ copyright laws, referencing specific limitations and exceptions, including many exceptions currently in Canada’s copyright laws and those Canada has announced it plans to enact such as the Marrakesh Treaty.[13]

Third, the treaty makes clear (Art. 18.5) that each party is free to determine the appropriate method of implementing the provisions of the IP chapter, including those related to exemptions, within its own legal system and practice.

Claim 4: Statutory damages for copyright infringement in the TPP didn’t promote Canada’s policies

Geist argues that the TPP is also a digital policy failure because the treaty doesn’t require all parties to enact Canadian limitations on statutory damages.[14] His claims appear to refer to the 2012 amendments to the Act, which created a differential level of statutory damages depending on whether the infringement is for a commercial or non-commercial purpose.

One can argue about the merits of this amendment to Canada’s statutory remedy provisions in the Act. The purpose of such damages is, among others, to ensure there are effective remedies against infringers, discourage infringement, reduce the costs of litigation, and encourage parties to settle litigation. This purpose should not be undermined.[15]

However, regardless about one’s views about the appropriate policy towards statutory damages, Article 18.74.6 of the TPP, which deals with statutory damages, does not prescribe any level or levels of “pre-established damages” or prevent a party from having different levels of pre-established damages depending on the purpose of the infringement. Moreover, a party does not even have to have statutory damages if its law provides for additional damages, which may include exemplary or punitive damages.

Canada’s laws recognize exemplary damages for infringement of copyright, so its digital policies towards such remedies are not only preserved, but also available to other countries who wish to follow Canada’s model.[16]

Claim 5: Extending the copyright term by 20 years will lock down content and harm Canadian heritage

The TPP requires that parties protect copyright in works for a term of 70 years from the life of the author. The term of protection under current Canadian law is 50 years. Geist claims that the 20 year extension in the term of copyright will “lock down the public domain for decades”, be “a massive blow to access to Canadian heritage”, and “do enormous harm to Canadian heritage”.

Geist likes to use the emotionally super-charged metaphor of content being “locked up” or “locked down” because of copyright to garner maximum visceral reaction for his claim. It sounds from listening to him like all works that were scheduled to fall into the public domain will immediately be made inaccessible by being pulled from stores and libraries and be buried as radioactive waste at the Yucca Mountain Nuclear Waste Repository, or some similar facility.

Of course works that remain in copyright for another 20 years wouldn’t be locked away. That hasn’t happened in the 90 or so countries that have copyright terms of 70 years or more from the life of the author. These works would continue to be available in libraries and would continue to be offered for sale in traditional or digital formats, and licenses for their continued exploitation would not be yanked because of a term extension. In fact, as economist Professor Marcel Boyer pointed out in a study entitled Assessing the Economic Impact of Copyright Reform commissioned by Industry Canada, copyright holders and the publishers and sellers of copyright protected goods have every incentive to ensure that their content continues to remain widely available to the public:

Many observers fear that the current proposals for copyright reform will make access to significant number of ‘old’ works very difficult. But the contrary may be closer to the truth. Insofar as the copyright owners are interested parties in making their works accessible to large public in order to derive revenues from them, one may expect that different arrangement will emerge so that as many users as possible and profitable can have access to a large number of high quality copies of “old” copyrighted works than it is the case now.

Copyright law also provides only thin protection for creators who want to create new works by copying or building upon the ideas, facts, concepts, processes, methods, or discoveries in a work, as only original expression is protected by copyright. Copying and other uses of works for many purposes may also be done without infringing copyright where an exception exists. The Act has many exceptions, including fair dealing with a work for research, private study, education, parody, criticism and news reporting. Many other exceptions exist, including specific exemptions for libraries and museums, educational institutions, the disabled, encryption research and security testing.

Canada also has a system that enables the Copyright Board to license orphan works (works where the copyright owner cannot be located) for exploitation in Canada.[17] These rules would continue to apply to works that remain in copyright for another two decades so as to make them available for exploitation purposes.

Since a term extension does not “lock-down” content, Geist’s real claim appears to be not that works that would have fallen into the public domain won’t be available; only that they won’t be available without some payment to copyright owners. Accordingly, the main issue is an economic one.

Geist claims that the costs to the public of a term extension will “exceed $100 million per year”. He bases this on a questionable New Zealand estimate that the net costs to that country would be NZ$55 million (or approximately Can $47.85 million) per year. Yet, he makes no attempt to examine the assumptions in the New Zealand study or to determine their applicability to Canada. Neither Canada nor the $100 million figure Geist cites appear anywhere in the New Zealand study. This figure is apparently simply made up by Geist. Unfortunately, this made up figure has subsequently been cited as gospel by others who simply repeat what he says without question. This includes the Globe and Mail.18]

What is most puzzling, however, is that Geist ignores entirely an Industry Canada-commissioned a study on this very issue, The Industry Canada study, conducted by Université de Montréal economics Professor Abraham Hollander, did not quantify the exact costs of a term extension, but concluded that the user costs of a 20 year term extension “may increase slightly in response to a higher cost of locating right holders and negotiating rights to works whose protection term has been extended”. (emphasis added) Geist didn’t fail to cite the Hollander study because he was unaware of it. He had referred to, and in fact relied on, the Hollander study in one of his own blog posts recently on the issue of the economic impacts of the term extension for sound recordings.

The reality is that determining the net benefits or burdens of a term extension is a complex task. Economists and law and economics scholars, lawyers and others have debated the issue with a number of them providing reasons (including the reasons set out below) justifying a term increase. Michael Geist did not refer to any of these in his criticisms of the TPP term extension.

  • Whether there are really significant economic costs to users associated with a term extension; some economists dispute this based on empirical evidence showing the prices of public domain works are not cheaper or significantly cheaper than those authorized by copyright holders. The real effect of shorter term is a reallocation to public domain vendors who don’t use proceeds of their sales to re-invest in creative works or creators.[19]
  • There are net benefits to Canadians by being able to take advantage of longer terms of protection in Member States of the European Union, Australia, Israel, Japan, and India, which only provide longer terms of protection for foreign works on a reciprocal basis by relying on the Berne Convention Rule of the shorter term. As the U.S. Supreme Court pointed out in Eldred v. Ashcroft, 537 US 186 (2003), this reciprocity rule in the EU was one of the reasons the U.S. increased its copyright term.[20]
  • Canada’s largest trading partner and other countries (about 90) including member states of the European Union (including the UK and France), Australia, Russia and Japan, Israel and Mexico, all have terms for works of 70+ years. Harmonizing Canada’s term of protection with our major trading partners can facilitate copyright compliance and rights clearances, especially today where material is made available online across geographic boundaries.
  • Some economists counter the argument that extending copyright terms would have only very limited effects on the creation of additional works. Empirical evidence has shown that, in at least some cases, a 20 year term extension has economically significant positive effects on the production of copyright content.[21]
  • Some economists also contend that even small increases in expected payments from a term extension need not have small impacts on the creation of additional works. “There is a possibility that for some authors, in some range of income and propensity to create, a small increase in present value could make an important difference in creative output, perhaps because they reach a point where they switch to full-time writing.” On this basis, “the present value of additional benefits is not necessarily small as the benefits from any additional creative works begin to accrue immediately; they are not discounted far into the future, the way that incremental revenues and incremental costs are.”[22]
  • While some have claimed that creators would not rationally be motivated by the extra 20 years, others argue that creators do not make decisions using purely rational criteria and that behavioral economics suggests that a longer term may influence creators.[23]
  • A term extension compensates for the recent developments associated with digitization and distribution, which have dramatically reduced the costs of copying and distribution over the Internet, and militate in favour of an increase in the term of protection to preserve incentives.[24]
  • A 20 term extension maintains the historical reason for having the 50 year term which was to provide a source of revenues for three generations, the author and two further generations. The 70 year term from the life of the author takes into account that the average life expectancy has increased.
  • An underlying theory behind attacks on term extension is that whatever good there may be in copyright, the public domain is better. No one denies there is value in the public domain, but the myth that a work that remains in copyright somehow diminishes a countries’ heritage overstates the value of the public domain. Copyright not only provides incentives to create and disseminate works. It also encourages investment by optimizing uses of property, something the public domain does not do.[25] Consequently, ultimately there will be more works created, and therefore more supply into the public domain and more works made available, with a longer copyright term.[26]

Kamil Gérard Ahmed has argued that “Parliament must not ignore EU and US copyright law developments and should amend the Canadian Copyright Act by extending the term of copyright to 70 years after the author’s death, for the benefit of Canadian copyright title holders”.[27] He contends that economic arguments advanced against term extension are improperly premised “on the assumption of a closed economy” when in fact we operate in an open economy setting. His conclusions in favour of a term extension for Canada were set out as follows:

Parliament must amend the Copyright Act to extend the current life plus 50 term of copyright by an additional 20 years…Some 95% of Canada’s reported FDI [foreign direct investment] in 2003 originated from life plus 70 nation-states. Parliament must not ignore these data. Indeed, in an era of multinational publishers and instantaneous electronic transmission – harmonization has obvious practical benefits and is a necessary and proper measure to meet contemporary circumstances for Canada’s prosperity.

US copyright title holders can earn monopoly rents for an additional 20 years in the EU, for example, and the opposite is also true. Canadian copyright title holders cannot do the same further to the Berne Convention and are thus ab initio precluded from earning additional revenue in life plus 70 nation-states – this is unfair, unnecessary and disadvantages Canadian copyright title holders. Moreover, the incremental NPV [net present value] of extending the term of copyright in Canada per average investor may be small, but as an industry, Canadian copyright title holders stand to gain a NPV of some $150 million assuming a 7% discount rate. This sum is certainly not insignificant. Furthermore, copyright title holders often perceive a longer term of copyright to be more valuable and this belief cannot be ignored. An aging population with a longer life expectancy, complemented by technologically driven times further support extending the term of copyright in Canada.

The Canadian business community that has a vested interest in copyright term duration would prefer a life plus 70 term and Parliament must indeed remain responsive to these needs for a basket of reasons. The copyright-related industry in Canada is indeed very important to the country’s gross domestic product (GDP). According to Industry Canada, [i]n 2000, the … GDP … of the copyright-related sectors publishing, film, music, software, visual arts, etc.) was estimated at $65.9 billion or 7.4 percent of Canadian GDP. Between 1992 and 2000, the value of these sectors increased by an annual average of 6.6 percent, compared with 3.3 percent for the rest of the Canadian economy. Together, these sectors formed the third most important contributor to the growth of Canada’s economy. Despite the importance of the copyright-related industry to Canada’s GDP, amending the Copyright Act to extend the current term of copyright has been a politically oft-ignored matter…

Claim 6: The TPP requires intellectual property protection for country code domain names

Geist claims that “the TPP mandates… intellectual property protections for each country-code domain”. An example is a domain name ending with the .ca suffix for Canada. The TPP does no such thing. It mandates that there be a remedy for unfair predatory conduct; it does not require that parties create a new intellectual property right in domain names.

Art. 18.28 requires that there be an appropriate procedure for settling disputes based on the internationally recognized ICANN approved UDRP process, or another process that (i) is designed to resolve disputes expeditiously and at low cost; (ii) is fair and equitable; (iii) is not overly burdensome; and (iv) does not preclude resort to judicial proceedings. It also requires parties to have remedies to address bad faith intent to profit from a domain name that is identical or confusingly similar to a trade mark. These processes are designed to provide a means to combat cyber-piracy and predatory and parasitical practices such as cybersquatting that have been adopted by some to exploit the lack of connection between the purposes for which the domain name system was designed and those for which intellectual property protection subsists.[28]

Canada meets these requirements including through CIRA’s Canadian Dispute Resolution Policy (the CDRP), the first of which was adopted by CIRA in 2002 while Geist was a member of its Board of Directors. The current CDRP Rules and privacy policy were also established while Geist was a Director of CIRA.

Neither of the TPP provisions related to domain names requires that a party confer a trade-mark or other intellectual property right in a domain name, although many countries including Canada enable domain names to be protected as trade-marks if they otherwise meet the requirements for being a trade mark under applicable law. Further, many countries including Canada have found that domain names can infringe either registered or common law rights in trade-marks, such as when they are identical or confusingly similar to a trade mark.[29]

Claim 7: The TPP will prohibit Provinces such as British Columbia and Nova Scotia from storing government data in-province

Geist claims that “data localization requirements” in the TPP would prevent British Columbia and Nova Scotia from requiring the use of local servers for storage of government information such as health data.[30]

Geist has failed to explain that this obligation is subject to important exceptions. Art. 14.11 expressly recognizes “that each Party may have its own regulatory requirements concerning the transfer of information by electronic means”. Moreover, under Article 14.2(3) there is a clear statement that the entirety of Chapter 14, including all restrictions therein, do not apply to government procurement or information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its collection. As political subdivisions of Canada, provinces would benefit from both exemptions.

Claim 8: The TPP will prohibit parties from enacting reasonable data residency laws that prevent the cross-border transfer of personal data to other parties where the data could be subject to mass surveillance.

Geist more generally claims that the TPP’s data localization provision “restricts legislative initiatives that require storage of personal information in Canada or that limit data transfers outside the country”. The data localization provision is an important one to online commerce and to businesses — including Canadian businesses — that want to keep high paying IT and services jobs in their home countries. It is also a recognition of the pragmatics of international trade in the 21st century.

Geist, however, raises concerns about restrictions on data residency requirements in “a post-Snowden environment”, a concern recently brought to the fore by the judgment of the Court of Justice of the European Union in the Schrems case invalidating the EU-US safe harbour and ongoing negotiations between the EU and the US on a revised EU-ES Safe Harbour.

Geist’s concerns about the data localization rules make no mention of the exceptions to them. In fact, the TPP expressly allows restrictions on data flows to address any “legitimate public policy objective,” provided that the restriction “(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and (b) does not impose restrictions on transfers of information greater than are required.[31]

Furthermore, the provisions Geist complains about are in fact subject to limitations that expressly allow parties to impose restrictions on data flow to protect privacy. (Art 29.1(3), which makes all of Chapter 14 subject to permitted limitations in paragraph (c) of Article XIV of GATS.) These limitations permit Parties to secure compliance with laws or regulations to “the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts”. This right was confirmed in the Progress Report to the General Council Adopted by the Council for Trade in Services (GATS) on 19 July 1999 in the context of the Work Programme on Electronic Commerce, which specifically endorsed the right to protect both public morals and privacy as being important considerations in the e-commerce provision of services, as long as the measures taken do not constitute a means of arbitrary or unjustifiable discrimination, or a disguised restriction on trade in services.[32]

Geist also complains that the treaty did not go far enough, as it “allows countries “to meet the privacy requirements with enforceable “voluntary undertakings”” as long as the “voluntary undertakings can be enforced by a regulator”. Geist’s complaint effectively amounts to a criticism that the TPP isn’t an international privacy treaty, which it isn’t. Nor is it an international climate change treaty. But that doesn’t mean it’s not a good international trade treaty.

Not surprisingly, the TPP doesn’t purport to harmonize privacy laws across the laws of all of the parties based on Canada’s federal privacy law, PIPEDA. However, neither does it require Canada or any other country to adopt the framework of the U.S., under which an individual’s personal information is protected through a patchwork of State laws, including common law torts, and federal laws including federal law enforced by the FTC against, inter alia, companies that do not comply with their privacy policies.[33]

Geist’s suggestion that the TPP should have reflected Canadian privacy laws would also raise questions about Canadian implementation, given that our provincial laws related to the collection, disclosure and use of personal information are not even harmonized to our federal privacy law, PIPEDA.

Claim 9: Bans on disclosure of source code will lead to cyber-security and environmental risks

Geist claims that Article 14.17 of the TPP bans parties from requiring the disclosure of software source code found in certain mass-market products.[34] He claims that this prohibition “has cyber-security experts and consumer advocates concerned about the implications for detecting harmful software or products that fail to comply with consumer protection or environmental standards”. In particular, he claims that Parties would be precluded under the TPP from mandating the disclosure of source code to agencies regulating vehicle emission standards (such as a law that would require the disclosure of source codes to computer programs in Volkswagen automobiles that provide data vehicle emissions).[35]

This provision is an important one for technology businesses which generally distribute mass market software only in object code form to preserve trade secrets in software products. Disclosing source code could also make it much easier for hackers to insert malware or spyware into software products that could increase cyber-security risks. Accordingly, there are good public policy reasons for the Article, something that Geist does not explain.

Geist also does not consider the actual scope of the wording in the obligation or that it is subject to important limitations.

First, the prohibition is limited to “mass-market” software and products containing such software.  For software to be “mass-market”, it must be marketed or sold openly (like Windows 7, or Word etc.).[36] An example of a product that contains mass market software is a personal computer that is bundled with Windows 7. Software such as the emissions control software at issue in the Volkswagen emissions scandal is not mass-market software. Automobiles that are sold with such software are very likely not to be products that contain mass market software. 

Further, under Article 14.2(2) the provisions of Chapter 14 apply only to “measures adopted or maintained by a Party that affect trade by electronic means”. Accordingly, it has been suggested that Article 14.17(1) likely only applies to subject matter when the products involved are sold in electronic commerce. [37] Accordingly, on this basis, the prohibition might apply to mass market software like Windows 7 or to personal computers that are sold pre-loaded with such software. But it would not likely apply to vehicles or other products that are sold in bricks and mortar commerce.

Second, the prohibition is against requiring the transfer of, or access to, source code of software “as a condition for the import, distribution, sale or use of such software”. The prohibition does not expressly purport to prevent the requirement to disclose source code to software for public policy purposes, such as to prevent cybersecurity threats, to prevent fraudulent vehicle emission test results, or other consumer protection reasons.

Third, the Article Is subject to Art 29.1(3), which includes the limitations in paragraphs (b) and (c) of Article XIV of GATS. This includes limitations necessary to secure compliance with laws or regulations necessary to protect human, animal or plant life or health, including environmental measures necessary to protect human, animal or plant life or health. Further, and especially as to Geist’s claim about the Article’s creating potential cyber-security threats, parties can also take measures to secure compliance with laws or regulations related to safety, or to prevent the prevention of deceptive and fraudulent practices, or to protect the privacy of individuals, in relation to the processing and dissemination of personal data.

Finally, the Article is also subject to permitted security exceptions in Article 29.2, which provides that nothing in the TPP “shall be construed to preclude a Party from applying measures that it considers necessary for… the protection of its own essential security interests”. The effect of this provision gives full scope to governments to make their own national security decisions which could include prohibitions, for example, to combat cyber-security threats.[38]

Claim 10: The parties should have agreed to harmonize their anti-spam/malware laws to CASL

Perhaps the most hysterical and absurd of all Geist’s claims is that the TPP is a digital policy failure because Canada’s anti-spam rules cannot be found in the TPP. Once again, Geist’s criticism of the trade treaty seems to be that it’s a trade treaty – and not an anti-spam treaty.

The absurdity of that criticism aside, in fact, far from being a defect, this shows the wisdom of the parties. CASL is an ill-conceived, indefensible law, which overly restricts commercial speech without justification. CASL has been ridiculed by the Canadian press and commentators which have called it, among other things, a Monty-Python-esque farce, a Spamaflop, deeply stupid, a sledgehammer that is ludicrous regulatory overkill, a looming disaster, and a bad and draconian law. It is all that and more including almost certainly being unconstitutional. Michael Geist was one of the chief supporters of this extremely flawed law and is one of the few supporters it still has in Canada. See Michael Geist’s defense of Canada’s indefensible anti-spam law CASL, CASL Industry Canada regulations: summary and comments, and CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline. As I recently wrote:

CASL has likely cost Canadians millions of dollars in compliance costs and miles of red tape. It is a drag on innovation and hurts the competitiveness of Canadian businesses, which alone among their foreign competitors have to comply with such significant barriers to commercial electronic commerce. It acts as an impediment to foreign investment in Canadian high paying technology jobs and has resulted in Canadian businesses moving IT operations out of the country.

Ultimately, it is also ordinary Canadian consumers who suffer because of CASL. They indirectly have to foot the hefty CASL compliance costs and disproportionate fines exacted by the CRTC. All of these costs get passed on to consumers as higher costs for goods and services. So when you get a price hike on your next purchases of media products from Rogers Media, thank CASL and the CRTC.

CASL should be repealed or significantly amended. Fixing CASL should be at the top of the new Government agenda of inherited laws that need fixing.

It is ironic that Geist complains that CASL, arguably the world’s worst anti-spam law (and computer program distribution law which masquerades as a law targeting only harmful programs like viruses), should have been foisted on the other treaty partners, while objecting to minor incremental amendments to Canadian laws that generally harmonize our law with international standards.

Geist’s attacks on the TPP prejudices public understandings of the treaty

Any claim that the TPP is a digital policy failure would necessarily have to weigh the potential benefits and burdens of ratifying the treaty. Yet, Geist doesn’t even attempt to consider or weigh any of the potential benefits of the TPP including the IP or e-commerce chapters when declaring that the two chapters are a failure. Accordingly, even if his criticisms of the TPP had merit or weren’t completely devoid of any merit, his jumping to the conclusion that the TPP is a digital policy failure would be premature.

The TPP presents a major opportunity for Canada. As a nation that depends on trade, it is potentially very important that we have most favoured nation status with our largest trading partners, the U.S. and Japan, and expand such MFN relationships to the faster growing economies of the other TPP parties and those who may join later such as South Korea, China or India. The costs of being left behind could be staggering for Canada in the long term. If Canada does not joint the TPP, it would retain WTO-level MFN treatment from the TPP parties and get NAFTA-level preferential treatment from the U.S. and Mexico. But, as Lawrence Herman points out, Canada would not obtain the preferences accorded by the TPP member countries among themselves including preferential treatment the U.S. is required to give to its TPP partners.

Moreover, there is much in the IP and e-commerce chapters that could be of great importance to Canadian businesses. If Canadians are going to succeed in the 21st century knowledge economy our laws and regulatory frameworks must support innovation and creativity and facilitate the success of Canadian innovators and creators in foreign markets. Unquestionably, intellectual property rights and digital policy frameworks are pillars of this international economy.

The IP chapter of the TPP reflects legal frameworks that have supported and enabled some of the world’s most successful technology companies such as Google, Microsoft, Apple, IBM, and Facebook. It has also supported and enabled innovation in the creative industries including in the music, movie, book publishing, software, and entertainment software industries. These industries rely on and require robust intellectual property protection to support investment in the creation and distribution of creative products.

The TPP’s provisions on intellectual property largely maintain the standards Canada has already agreed to in other treaties, including the Berne Convention, Rome Convention, TRIPS, and the WIPO Internet Treaties. For the most part, it comports with Canadian laws, including those recently enacted such as the Combating Counterfeit Products Act, which brought Canadian border measures to, or closer to, international standards.

The presence of the e-commerce chapter in the TPP reflects the growing importance of online trade and requires parties to take steps to promote policies that will encourage this form of commerce. For example, it attempts to facilitate recognition of online transactions, much like the provincial and federal initiatives in Canada did more than a decade ago by requiring parties not to deny the validity of a signature solely because it is in electronic form. It also requires parties to protect consumers online including against fraudulent and deceptive commercial activities. These types of laws were also adopted provincially and federally in Canada to provide confidence in electronic commerce. It commits the parties to collaborating on cyber-security matters, a scourge that plagues Canada and other countries. It also seeks to block potential barriers to online commerce in other ways described above.

The IP and e-commerce chapters of the TPP reflect, to a great extent, the types of digital policies Canadian federal and provincial governments have been promoting for more than a decade and a half. One could reasonably expect our present and future innovators and creators would welcome opportunities to expand their knowledge based businesses into foreign countries under these frameworks and to be able to do so from facilities in Canada to create and keep high paying jobs for Canadians.

One would also expect Canadian businesses would be grateful for the protections provided by the investor state dispute settlement (ISDS) system that provides, inter alia, protections with respect to national treatment, MFN treatment, expropriation, and fair and equitable treatment. The ISDS system, however, departs significantly from other investment agreements by narrowing the types of claims that can be brought and by giving parties including Canada new measures of flexibility to ensure they are not prevented from acting in their own interests.[39]

The TPP presents Canada with potentially large economic opportunities if Canada ratifies the treaty and potential major opportunity costs should Canada not join it. Assuming the U.S. moves ahead to ratify the treaty, Canadians will be faced with a very important policy choice. The TPP deserves to be reviewed as a whole in a careful, reasoned and balanced way. The intellectual property and e-commerce chapters should be given a level-headed assessment as part of that overall review. A balanced assessment of the IP and e-commerce chapters would necessarily look at the projected benefits and burdens of those chapters. This is something Geist didn’t even try to do before declaring them a digital public policy failure.

The public expects that when Michael Geist, a Professor of Law, the Canada Research Chair in Internet and E-commerce Law, a blogger with a significant following, and a columnist with the Toronto Star, makes pronouncements about a major issue of public policy such as the TPP, that he has done his homework, knows what he is talking about, and is factually accurate, as well as being opinionated. On issues as potentially important for Canada’s economic future as the TPP there would be an expectation that his views will be reasoned and balanced, or if not that, then at least accurate, or if not that, then at least not be misleading, or if not that, then at least not a scare tactic, and that claims about treaty defects can reasonably have been within the parameters of what one could expect for this kind of treaty. As shown above, however, Michael Geist’s assertions about the TPP’s intellectual property and e-commerce chapters fall short on all of those reasonable yardsticks.

All of this matters. If the public is misled, public debate and policy may suffer and Canada’s long term economic prospects associated with the TPP could be put at risk.

An example of the dangers of Geist’s approach to the TPP is the moral panic he created with his incorrect assertions that the TPP would require Canada to implement an express notice and takedown regime. Without any apparent effort to confirm the accuracy of his claims, his assertions were uncritically disseminated in the social media, and by traditional media, including The Globe & Mail, CBC, CTV, National Post and others. Geist was wrong about this aspect of the TPP but the media unwittingly published his incorrect views to the general public.

The news commentators on social media gave credence to Geist’s claims, assuming them to be accurate and newsworthy. On October 9, 2015, Daniel Tencer of The Huffington Post Canada published an article repeating Geist’s claims about the TPP and notice and takedown. Reilly Yeo of Openmedia then published another post on October 16, 2015, noting that Michael Geist “has the clearest breakdown” of how the TPP “might undo Canada’s copyright notification system entirely” (referring and linking to Michael Geist’s October 13 bog post).

The supposedly reputable Canadian news media then got on the Geist notice and takedown TPP bandwagon. On October 22, 2015, The Globe and Mail published an editorial, Copyright concessions may be downside of TPP deal. Referring to Geist’s interpretation of the TPP, it told its readers “Canada’s internet providers may be forced into a U.S.-style regime of “notice and takedown” – wherein complaints result in blocked or removed content even if they haven’t been ruled as a violation by a court”.

Geist’s interpretation of the TPP got even more circulation in a news article written by Peter Henderson of The Canadian Press on October 25, 2015, which was widely syndicated and published by the Toronto Star, CBC, CTV, The Globe and Mail, iPolitics, 660News, among others. The article featured quotes from “copyright expert” Michael Geist (and a colour photo of him to emphasize his importance in the article). The article featured quotes from Meghan Sali from OpenMedia, who repeated Geist’s interpretation of the TPP, saying that the “deal could replace this so-called notice-and-notice system with the U.S. notice-and-takedown system, in which content is blocked or removed as soon as the first complaint is made”.

As described above, Geist later admitted that the TPP does not require Canada to implement an express notice and takedown system. His admission did not, however, undo the damage done by the misinformation he spread. It did nothing to correct the information on the many blogs and newspapers (including the Globe and Mail editorial) in which it was disseminated. Geist hasn’t even made on a note on his erroneous blog postings to inform readers who come across his posts that they aren’t true. Even now, I continue to hear from people who still believe Geist’s assertions are true.

Geist was wrong about notice and takedown, just as he was wrong about many other aspects of the IP and e-commerce chapters of the TPP. The media was also wrong to uncritically disseminate his views on the TPP. This, unfortunately, is an all too familiar pattern with respect to policies he opposes.[40] The difference now are the stakes involved. With so much of Canada’s economic future at risk, surely a higher standard of discourse should be expected from Canada’s Research Chair in Internet and E-commerce Law.


[1] This blog posts relies on statements made by Michael Geist in the following blog posts, articles and presentations: Michael Geist, October 9, 2015, Canada Caves on Copyright in TPP: Commits to Longer Term, Urge ISPs to Block Content , Michael Geist, Toronto Star, , October 13, 2015, How the TPP may put your health care data at risk: Geist | Toronto Star; Michael Geist, October 13, 2015, Why the TPP Creates a Backdoor Copyright Takedown System in Canada ; Michael Geist, October 15, 2015, How the TPP May Put Your Health Care Data at Risk , Michael Geist at CIGI, November 12, 2015, Canada and the TPP: A Digital Policy Failure, Michael Geist, CBC News, November 12, 2015, TransPacific Partnership puts Canadian IT at disadvantage, says Michael Geist, Michael Geist, November 13, 2012, What the New Copyright Law Means For You, Michael Geist, Star Touch, November 15, 2015, TPP will kill digital policy, Michael Geist, November 18, 2015, Why the TPP is a Canadian Digital Policy Failure, Michael Geist, November 24, 2015, Signing vs. Ratifying: Unpacking the Canadian Government Position on the TPP – Michael Geist, Michael Geist, November 30, 2015, What Canadian Heritage Officials Didn’t Tell Minister Mélanie Joly About Copyrightist, Technology and the TPP: What’s At Stake, University of Ottawa, November 30, 2015, The Hill Times TPP Forum, DEC. 8, 2015.

[2] These claims were made, inter alia, in the blogs referred to above, in a lecture he gave to the Centre for International Governance Innovation Canada (CIGI) entitled the TPP: A Digital Policy Failure and in several subsequent blog posts before and after the text of the treaty was released, including How the TPP may put your health care data at risk, his Toronto Star column TPP Will Kill Digital Policy, and in a CBC interview.

[3] According to Geist:

Moreover, the government will “induce” Internet providers to engage in content blocking even where Canadian courts have not ruled on whether the content infringes copyright. As a result (and as expected – this was raised years ago), the government’s “made in Canada” approach to copyright – which it has frequently touted as representing a balanced approach – faces a U.S. demanded overhaul…

The Canadian government was able to preserve the notice-and-notice system for Internet providers, but at a very high price. Canada has now agreed to induce providers to “remove or disable” access to content upon becoming aware of a decision of a court of a copyright infringement. The broadly worded provision could force Canadian ISPs to block content on websites after being notified of a foreign court order – without first having to assess whether the site is even legal under Canadian law. (emphasis added)

[4] According to Geist:

Section I of the copyright chapter creates a U.S. style notice-and-takedown system. The Canadian solution was to create a special annex that provides an alternative to the U.S. approach. While the annex was designed specifically for Canada, it would appear that it fails to prevent copyright takedowns from coming to Canada.

The problem stems from the following requirement in the annex, which requires a country to:
induce Internet Service Providers carrying out the function referred to in paragraph 2(c) 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.

This is an obvious takedown and content blocking provision. If it applies simply to a standard Internet provider, it would mandate content blocking upon becoming aware of a court decision that the content infringes copyright. Note that the court decision does not need to be a Canadian court. This means that another court could rule on the legality of the content based on its domestic copyright law and the Canadian provider would still be required to remove or disable access. Content that is perfectly legal in Canada (e.g. qualifies for fair dealing or is non-commercial user generated content) could therefore still be blocked or taken down based on the application of foreign copyright law. The “made in Canada” approach would be lost.

The implications of this provision go even further, however. The reference to paragraph 2 (c) refers to instances where content is stored or controlled by a network provider. This language comes from the U.S. DMCA and applies to a wide range of companies such as YouTube, Facebook, Flickr, and Dropbox. In a Canadian context, it would apply to Shopify, Hootsuite, and many other well-known Canadian Internet companies. In other words, all of those companies now face a Canadian takedown system through the TPP based merely on being made aware of any court decision. Note that this Canadian takedown system is even worse than the U.S. approach since there is no counter-notification or “put-back” mechanism.

[5] Copyright scholar William Patry defines a “moral panic” as a “reaction by a group of people based on the false or exaggerated perception that some cultural behavior or group…is dangerously deviant and poses a menace to society”. William Patry, Moral Panics and the Copyright Wars (Oxford University Press, 2009) at p. 135.

[6] Technology and the TPP: What’s At Stake, “the Canadian government quite clearly wanted to ensure that notice and notice survived. There was a lot of political capital that went into that. So much so that when you read through the text, it’s clear that that issue more than other was the one that needed to survive”.

[7] A footnote to the TPP clarifies that “the Parties understand that a Party may treat “financial gain” as “commercial purposes”.”

[8] See Michael Geist’s Digital Economy Consultation Submission “Unfortunately, the anti-circumvention provisions (often referred to as legal protection for digital locks) — unquestionably the biggest and most controversial digital copyright issue — is the one area where there is no compromise. Despite a national copyright consultation that soundly rejected inflexible protections for digital locks on CDs, DVDs, e-books, and other devices, the government has caved to U.S. pressure and brought back rules that mirror those found in the United States. These rules limit more than just copying as they can also block Canadian consumers from even using products they have purchased.”; Michael Geist `TPMs’: A perfect storm for consumers “Although the use of the technological restriction was relatively unimportant — a speed bump rather than a full blocking mechanism — its use highlights the increasing reliance on technological protection measures (TPMs) to control access to, and use of, digital content. The proliferation of technological protection measures, alongside new legislative proposals designed to protect these digital locks, represent a perfect storm of danger to consumers, who may find themselves locked out of content they have already purchased, while sacrificing their privacy and free speech rights in the process.”; Michael Geist testimony before the Legislative Committee on Bill C-32 “With regard to digital locks, which have been among the most discussed and most criticized aspects of the bill, I should start by clarifying that much of the concern does not come from digital locks per se. Companies are free to use them if they so choose, and there is general agreement that there should be some legal protection for digital locks since it is a requirement of the WIPO Internet treaties, and that’s a clear goal of this legislation. Rather, the concern stems from Bill C-32‘s unbalanced position on digital locks, in which the locks trump virtually all other rights, as the committee itself heard just last week from Mr. Blais in the context of education. This distorts the copyright balance not only for the existing exceptions within the Copyright Act, but also for the new consumer rights, which can be trumped by a digital lock just at the time they are widely found in devices, DVDs, electronic books, and more”; Michael Geist What the New Copyright Law Means For You “The most significant new restriction involves the controversial digital lock rules that prohibit by-passing technological protections found on DVDs, software, and electronic books. There are some exceptions to this prohibition (including the ability to circumvent the digital lock to protect personal information, unlock a cellphone, or access content if the person has a perceptual disability), but these are drafted in a very restrictive manner.”

[9] Barry Sookman and Dan Glover, “Why Canada Should Not Adopt Fair Use: A Joint Submission to the Copyright Consultations”, Osgoode Hall Review of Law and Policy, Volume 2 Number 2 Volume 2, Number 2 (November 2009), Barry Sookman “Fair use for Australia? A report from the Kernochan Centre”, Dr. George Barker, “Agreed Use and Fair Use: The Economic Effects of Fair Use and Other Copyright Exceptions”, Paper Presented to the 2013 Annual Congress of the Society for Economic Research on Copyright Issues (SERCI) held in MINES ParisTech, Paris (France), 09, July, 2013, Tom Syndor “Why exporting fair use through TPP is a bad idea”.

[10] Dr. George Barker, “Agreed Use and Fair Use: The Economic Effects of Fair Use and Other Copyright Exceptions”, Paper Presented to the 2013 Annual Congress of the Society for Economic Research on Copyright Issues (SERCI) held in MINES ParisTech, Paris (France), 09, July, 2013

[11] Article 18.65: Limitations and Exceptions states:

With respect to this Section, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.

[12] See also Article 18.2 that states the “protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare”.

[13] Article 18.66 of the TPP states:

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.

[14] “Meanwhile, Canadian policies that promote user-generated content, limit statutory damages, or establish consumer exceptions are all missing from TPP.” “Just this week in Silicon Valley, several members of the US Congress held hearings, held a hearing about copyright reform in the United States and many within the tech community specifically cited Canadian new caps on statutory damages recognizing there needed to be a difference between the damages for commercial piracy, commercial infringement, compared to non-commercial activity. We have that reflected in our law and it’s a positive reform, but you will not find it in the TPP.”

[15] See Barry Sookman, “Some observations on Bill C-11: The Copyright Modernization Act

[16] The Supreme Court of Canada recently underscored the importance of punitive damages in the Robinson case, ruling that Quebec courts have the jurisdiction to order such damages in order to provide adequate remedies for the infringement of copyright, remedies which the court found were necessary under the Quebec Charter of human rights and freedoms.

[17] See Barry Sookman, Orphan works: the Canadian solution, Barry Sookman, Fordham’s debate about Canada’s unlocatable copyright owner regime.

[18] Globe and mail editorial, Copyright concessions may be downside of TPP deal. ”Extending the copyright would come at a cost to Canadian consumers, possibly in the hundreds of millions of dollars.”

[19] See EU Commission, “Impact Assessment on the Legal and Economic Situation of Performers and Record Producers in the European Union”, SEC(2008) 2288; PwC Economics, “Impact of Copyright Extension for Sound Recordings in the UK” (28 April 2006); Richard A. Posner & William M. Landes, “Indefinitely Renewable Copyright “ ( John M. Olin Program in Law and Economics Working Paper No. 154, 2002); Prof. Barker, “Common Myths About the Economic Effect of Copyright Term Extensions for Sound Recordings”; Kamil Gérard Ahmed, “A Case for a Longer Term of Copyright in Canada – Implications of Eldred v Ashcroft Case” (2006) 37 R.D.U.S.

[20] Canada relies on this principle to deny foreigners a shorter term of protection than Canadians receive where their foreign country does not give Canadian creators a reciprocal level of protection.

[21] See I.P.L. Png et al, Qiu-hong Wang September 2006, “Copyright Duration and the Supply of Creative Work: Evidence from the Movies” “At various dates between 1991-2002, nineteen OECD countries extended the duration of copyright, typically from the author’s life plus 50 years to author’s life plus 70 years. We study the impact of the extensions on the production of movies. We find that the extensions were associated with an increase in movie production ranging between 8.51% (±4.60%) and 10.4% (±4.89%)… The extension of copyright duration applied retrospectively to owners of existing film libraries and might have reduced their cost of capital… Our results suggest that contrary to received thinking among leading economists and lawyers, extensions of copyright duration far in the future did have economically significant effects on the production of movies.”

[22] Stan J. Liebowitz & Stephen Margolis “Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics and Network Effects”, Harvard Journal of Law & Technology Volume 18, Number 2 Spring 2005

[23]A Case for a Longer Term of Copyright in Canada – Implications of Eldred v Ashcroft Case” (2006) 37 R.D.U.S.

[24] W.M. Landes and R.A. Posner, “An Economic Analysis of Copyright Law”, 18 J. Leg. Stud. 325, 325-33, 344-53 (1989)

[25] Scott M. Martin, “The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection”, 36 Loy. L.A. L. Rev. 253 (2002); Richard A. Posner & William M. Landes, “Indefinitely Renewable Copyright “ ( John M. Olin Program in Law and Economics Working Paper No. 154, 2002)

[26] Prof. Barker, “Common Myths About the Economic Effect of Copyright Term Extensions for Sound Recordings

[27]A Case for a Longer Term of Copyright in Canada – Implications of Eldred v Ashcroft Case” (2006) 37 R.D.U.S.

[28] See, Final Report of the WIPO Internet Domain Name Process, April 30, 1999

[29] See, Source Media Group Corp. v. Black Press Group Ltd., 2014 FC 1014

[30] Geist writes:

“[P]rovinces such as British Columbia and Nova Scotia have enacted laws to keep government information (such as health data) within the country. The TPP is designed to counter these efforts by restricting the ability of governments to mandate local data storage.”

[31] Art. 14.11 states: “3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to achieve a legitimate public policy objective, provided that the measure: (a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and (b) does not impose restrictions on transfers of information greater than are required.”

[32] Progress Report to the General Council Adopted by the Council for Trade in Services, 19 July 1999 at p. 3.

[33] See FTC v Wyndham Worldwide Corporation (3rd Cir. Aug. 24, 2015).

[34] Article 14.17 of the TPP reads as follows:

Article 14.17: Source Code

  1. No Party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory.
  2. For the purposes of this Article, software subject to paragraph 1 is limited to mass-market software or products containing such software and does not include software used for critical infrastructure.
  3. Nothing in this Article shall preclude: (a) the inclusion or implementation of terms and conditions related to the provision of source code in commercially negotiated contracts; or (b) a Party from requiring the modification of source code of software necessary for that software to comply with laws or regulations which are not inconsistent with this Agreement…

[35] Geist writes:

“The TPP also bans certain digital protections that may come back to haunt Canadian policy makers. For example… [I]t also creates a ban on rules requiring the disclosure of software source code found in mass-market products, a provision that has cyber-security experts and consumer advocates concerned about the implications for detecting harmful software or products that fail to comply with consumer protection or environmental standards (such as Volkswagen’s emissions violations).” “What happens when consumer agencies and others take a look at what happened to Volkswagen’s emissions standards and argue one of the ways to try and deal with those kinds of violations is to mandate the availability of the source code that was underlying those technologies. And yet the TPP now says you cannot mandate the disclosure of coding in those contexts.”

[36] See The IT Law Wik defining the term mass market software a “software that is (1) generally available to the public by sale, without restriction, from stock at retail selling points through over-the-counter, telephone, and mail transactions and (2) designed for user installation without substantial supplier support.”

[37] See TPP Article 14.17 & Free Software: No Harm, No Foul

[38] See Lawrence Herman Trans-Pacific Trade and Cyber Security

[39] John Boscario et al Trans-Pacific Partnership – Investment Protection and Investor-State Claims, McCarthy Tétrault LLP, November 27, 2015, Josh Scheinert et al, TPP and the evolution of investor rights, CBA National December 9, 2015

[40] See, Barry Sookman, Michael Geist: A question of values

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One thought on “TPP, copyright, e-commerce and digital policy: a reply to Michael Geist”

  1. David Collier-Brown says:

    A minor disagreement: Mass-market Linux software runs the wi-fi router that sits on my desk at home, with a very small custom bit that looks after the wi-fi. The US FCC and the Linux community are currently debating whether the whole system should be inspectable by the owner and the FCC, or sealed by the hardware manufacturers. I’m part of the discussion, and we found that parts of the Linux system can affect the wi-fi and cause it to go out of legal compliance due to a known bug left unfixed by the hardware manufacturer. This caused us to urge the FCC to make the whole inspectable by them, and where commercially permissible, by the purchaser. The wording of the TPP may pose us a problem here.

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