Thank you very much. Good afternoon.
My name is Michael Geist. I'm a law professor at the University of Ottawa where I hold the Canada research chair in Internet and e-commerce law. I'm also a syndicated weekly columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. I've edited several books on Canadian copyright and appeared many times before committees on copyright and trade policy, but I appear before this committee today in a personal capacity representing my own views only.
I greatly appreciate the invitation, as I have some very serious concerns about Canada's participation in the TPP. I should start by noting that I'm not anti-free trade. I support the government in its efforts to explore opportunities to expand markets for Canadian businesses.
That said the TPP raises some concerns. I would like to focus on some of the TPP's substance, particularly the copyright provisions in the draft agreement, as well as address some concerns related to process.
Let me start with the substance. Given the limited amount of time available, I'll focus primarily on the copyright provisions, though copyright is only part of the broader intellectual property issues raised by the TPP. You heard recently from Scott Sinclair on some of the patent issues, and if you're interested I'd be happy to discuss the implications of the TPP for governance of the domain name system in Canada.
As members of the committee know, Canada recently completed a long, difficult copyright reform process. Over a decade of debate ultimately resulted in Bill C-11. Virtually all stakeholders would say that the bill, which received royal assent last June, was imperfect. Yet it did reflect a genuine attempt at compromise, with many made-in-Canada provisions that are often cited as progressive, effective, and forward-looking digital copyright rules.
My single biggest concern is that the TPP will undermine the Canadian compromise that the government struck, and require radical changes to our national copyright law.
I should preface the analysis by noting that last year DFAIT conducted a public consultation on Canada's potential participation in the TPP, in which copyright was the top issue cited by individual respondents. No public report summarizing the responses was ever published, yet according to documents I obtained under the Access to Information Act, the government was overwhelmed with negative comments urging officials to resist entry into the TPP and the expected pressures for significant intellectual property reforms as part of the deal.
In addition to tens of thousands of form letters and e-mails criticizing the TPP, the government received hundreds of individual handcrafted responses that unanimously criticized the proposed agreement. In fact, a review of more than 400 individual submissions did not identify a single instance of support for the agreement; rather, those submissions focused specifically on copyright-related concerns.
Now based on a leak of the draft intellectual property chapter, let me provide four examples that lie at the heart of the public concern.
First, Canadian law now features a notice and notice approach on Internet provider liability, or ISP liability. This approach establishes the obligations for Internet providers and intermediaries when there are claims of copyright infringements, and grants copyright holders powers to raise allegations of infringement with the sites and their subscribers.
Moreover, it protects the privacy of subscribers and does not result in takedowns of content based on mere allegations. During the debates on Bill C-11, Canadian Heritage Minister James Moore repeatedly pointed to notice and notice as an example of a positive Canadian-specific approach. Yet according to leaked documents, the TPP would require that Canada drop its approach in favour of a more draconian takedown system that could stifle free speech and result in the removal of content without the need for any proof of infringement.
Secondly, the term of protection for Canadian copyright is presently the life of the author plus an additional 50 years after his or her death. This term meets the international requirement as established in the Berne Convention. The TPP would require Canada to add an additional 20 years to the copyright term. The extension in the term of copyright would mean that no new works would enter the public domain in Canada at least until 2034, assuming that the agreement takes effect in 2014. Many important authors would immediately be affected, since their works are scheduled to enter into the public domain in the period, let's say, between 2014 and 2034. These include Canadians such as Marshall McLuhan, Gabrielle Roy, Donald Creighton, and Glenn Gould, as well as non-Canadians such Robert Frost, C.S. Lewis, T.S. Eliot, John Steinbeck, J.R.R. Tolkien, and Ayn Rand. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to literature and history, particularly Canadian literature and history.
Thirdly, Canadian copyright law now features an important distinction with respect to statutory damages, as it contains a cap of $5,000 for all non-commercial infringements. While the reforms have been unsuccessful in stopping thousands of potential lawsuits against individuals, they do ensure that individual Canadians won't face the threat of hundreds of thousands or even millions of dollars in liability for non-commercial infringement.
The government, I think quite rightly, consistently argued that the reform was the right thing to do, yet the TPP would require Canada to drop the non-commercial cap and restore statutory damages that could climb into the millions of dollars for individual Canadians.
Fourthly, the digital lock rules were the most contentious aspect of Bill C-11. The provisions were widely criticized, but the silver lining, in an approach that, I have to say, went far beyond international requirements, was that the government kept the door open in the legislation to future reforms and exceptions to the digital lock rules. The TPP would close that door, increasing the penalties for circumvention and restricting the ability of Canada to create new digital-lock exceptions.
The copyright provisions in the TPP threaten a Canadian compromise that took a decade to achieve and that was strongly defended by the current Conservative government. I think undoing that compromise would constitute an enormous setback for Canadian sovereignty and for our long-term digital cultural policy.
I would be remiss if I did not also raise process concerns involving the secrecy associated with the TPP and the creation of a two-tier approach that involves special access to TPP information for some insiders.
The TPP negotiations have been ongoing for years, yet there has still been no official release of the draft text. To conduct a hearing on the benefits of the TPP without public access to the draft text forces participants to rely on leaked information that has not been officially confirmed. Canada should be demanding that a draft text be made available for all to see. Instead, it is deeply troubling that DFAIT has established a secret insider group, with some companies and industries associations being granted access to consultations as well as opportunities to learn more about the agreement and Canada's negotiating position.
I realize that Minister Fast denied the existence of such a group when he appeared before you last month. However, the documents I obtained under the Access to Information Act indicate that the first secret industry consultation occurred weeks before Canada was formally included in the TPP negotiations, in a November 2012 consultation with telecommunications providers. All participants were required to sign confidentiality and non-disclosure agreements.
Soon after, the circle of insiders expanded with the formation of a TPP consultation group. Representatives from groups and companies such as Bombardier, the Canadian Manufacturers and Exporters, Canadian Agri-Food Trade Alliance, and Canadian Steel Producers Association all signed a confidentiality and non-disclosure agreement that granted “access to certain sensitive information of the Department concerning or related to the TPP negotiations.”
I have copies of the signed NDAs right here that make specific reference to the TPP consultation group. The creation of a secret TPP insider group suggests an attempt to shy away from public consultation and scrutiny of an agreement that could have a transformative effect on dozens of sectors at a time when we should be increasing efforts to gain public confidence in the talks by adopting a more transparent and accountable approach.
I believe the TPP's highly secretive and non-transparent approach runs counter to Canadian values of openness and accountability. We should be actively encouraging participants to increase TPP transparency and should lead by example by ceasing the two-tier insider approach to trade agreement information.
I welcome your questions.