International Trade Committee on June 3rd, 2013

[Dr. Michael Geist]

Sure.

I highlighted four examples on the copyright side: the notice and notice approach that we have in the bill; term of copyright; digital locks; and statutory damages. Let me elaborate on the latter two you just raised in the context of statutory damages.

I think there was a recognition by your government, by Ministers Clement, Paradis, and Moore, that in the United States, which has seen lawsuits against individuals running into the millions of dollars in cases of non-commercial infringement.... They consistently on the public record have argued that it was not fair and not right to put an individual at risk over a non-commercial infringement.

The government, in an innovative approach that I, quite frankly, and many others were strongly supportive of, said that it was going to distinguish between commercial infringement— those who seek to profit from their infringement—for which we will have very strong statutory damages still in place, and non-commercial infringement. The non-commercial infringement under the law now creates a cap of a maximum of $5,000 for all infringements. So someone isn't at risk of losing their house, so to speak, on the basis of an allegation of non-commercial infringement.

I think that was a wise decision, and it is one that is now in effect under Canadian law due to your Bill C-11. However, based on the leaks of what's contained in the TPP, Canada would be required to drop that distinction and move back to the full statutory damages approach, so that individual Canadians would face the prospect of millions of dollars in liability.

On the issue of digital locks, I didn't agree with the government's position. But the one thing it did do within the law was specifically to identify how instances of new exceptions might come about so that the government could do that through regulation as opposed to having to fully amend the bill. Based again on the leaked texts of the intellectual property chapter, that flexibility would be removed. The government would be required to make changes to its digital lock rules, adopting a more restrictive approach than even it thought was appropriate just a few months ago when it passed Bill C-11.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

How reliable do you think these leaks are?

[Dr. Michael Geist]

They're the text, and I don't think we've seen any denials from the U.S. They come from the U.S. proposals on these bills. They are the versions that many stakeholders who are attending these various negotiations, most recently in Peru, are relying upon. We haven't seen the U.S. say it's not what they're proposing.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Obviously they wouldn't do that. Whether they were accurate or inaccurate, there's a standard policy where you don't comment on leaks, just like you don't negotiate with terrorists.

I'm not sure why you would expect to have them deny or affirm those leaks.

[Dr. Michael Geist]

They are leaked documents that show every sign of being the real text. They're the basis upon which hundreds of civil society groups and other stakeholders around the world are providing analysis until those governments come forward, as they did under the Anti-Counterfeiting Trade Agreement, to provide copies of the text.

I think it's a bit unfair to say to those same groups that we can't really take your concerns seriously because we don't know if this is the accurate text, when at the same time you do not make that text available.

If you want fully accurate analysis, then provide the text. Until that comes about, I think everyone who is looking to try to properly assess the implications of this agreement is going to have to rely upon those leaks.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

You come across as a very reasonable individual, stating earlier that you understood that Canada might have entered into these negotiations under certain conditions that would have precluded them from sharing any information. Yet at the same time you're asking that the government publicly release this information.

So I'm not sure. If the government has in fact entered into the negotiations with its own version of confidentiality agreements in place, it is simply not an option—if they want to continue to be considered a viable partner—for them to do anything other than stay within the terms they have agreed to.

[Dr. Michael Geist]

I think what I said was that in the context of the international negotiations with other countries, we ought to be trying to convince our negotiating partners to make a draft text available. With respect to what takes place domestically, what I said was that I don't think a two-tier approach is appropriate. Certainly, at a minimum, the department ought to be disclosing whom they have signed these NDAs with so that we know who has privileged access.

With respect, while it may be described as standard operating procedure in the context of the Anti-Counterfeiting Trade Agreement—which with regard to these provisions would be the closest analogy that the government has engaged in—the Department of Foreign Affairs considered creating a similar kind of insider group, but ultimately dropped that idea once people became aware that such a group would be created. So certainly in the context at least of these IP-related negotiations, it hasn't been standard operating procedure.

[The Chair, Conservative, Rob Merrifield]

Thank you very much.

Madame Papillon, you have five minutes.

[Annick Papillon, NDP, Québec, QC]

Thank you.

Ms. Des Chênes, I want to steer the discussion back to a topic that seems to concern everyone, the matter of transparency or the problem of access to texts. I'd like you to describe how that can be problematic for you in your own efforts to consult your members or have discussions with them. How does that affect your work? Does it make your job difficult, if not impossible, at certain times? Are you truly able to engage in a discussion, since all you have to go by is the interpretation of a few department officials? That doesn't really address the specifics of the issue in question.

Are you able to speak on behalf of your members during those industry consultations?

[Isabelle Des Chênes]

I have to say that our concerns aren't as complicated as those involving intellectual property. Things are much more nuanced. The main issues on our end are tariffs, environmental considerations and the supply programs. It's not quite as complicated.

As for the interpretation that the negotiators give us, it's easier for them to provide us with pretty sound briefings that are sufficiently detailed without giving us the texts.

As I said earlier, it's always better to have the text, because it gives us a better grasp of what it says in detail and allows us to do a better job of informing our members.

[Annick Papillon, NDP, Québec, QC]

Wouldn't having access to those texts allow you to prepare by consulting with your members first? Doesn't that situation prevent you from performing a certain function?

[Isabelle Des Chênes]

I would repeat that our concerns are not quite as complicated and are almost always the same for every agreement.

[Annick Papillon, NDP, Québec, QC]

But you don't deny it.

[Isabelle Des Chênes]

Pardon me?

[Annick Papillon, NDP, Québec, QC]

You don't deny that it could have an effect.

[Isabelle Des Chênes]

It would be very useful to see the text and share it with our members, but so far, I have been working well with the negotiators. The information they give us isn't as detailed as I would like, but it's enough to assure our members that the government is negotiating in good faith.

[Annick Papillon, NDP, Québec, QC]

Thank you.

Briefly, Mr. Geist, I'd like to ask you about the concerns of the major telecommunications companies when it comes to negotiating trade deals. Specifically, I'd like to know about the rules governing the responsibility of Internet providers. It seems to be a real concern.

What can you tell us about where Canada stands on those concerns?

[Dr. Michael Geist]

As I mentioned, I think the government did the right thing when it reformed copyright last year with respect to how it treated our Internet service providers and telecommunications companies, adopting an approach known as “notice and notice”, which in fact other TPP members such as Chile have adopted as their own. I think it was a very positive approach. The concern within the TPP is that, again, based on leaked text coming out of the United States, the U.S. would like to see that approach changed and mandate instead what's known as “notice and takedown”, the experience of which, in countries that have used that approach, raises serious free-speech issues. Under that approach, content may be removed without any sort of actual review, without any court taking a look at it, without any sort of analysis as to whether it's appropriate or fair under the circumstances. The Canadian approach, I think, does a really nice job of balancing things. Again, that's put at risk based on the text we've seen to date through leaks within the TPP.

[Annick Papillon, NDP, Québec, QC]

Thank you.

My colleague has one last question.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

I'll be quick.

Ms. Des Chênes, I worked a bit in forestry. You talked about the importance of opening up markets, especially Asian markets, to Canadian products. You also talked about the competition we will be facing from those countries. You said that fibre might be weaker in Southeast Asia, but was growing much more quickly elsewhere.

There are also sustainability and environmental considerations. Companies like APP come to mind. Could you comment on how satisfied you are with the negotiations under way, in relation to sustainability and the environment, and the competition we will be going up against?

[Isabelle Des Chênes]

They want to focus on provisions, rules and a policy that ensure that the fibre is certified and derived from legal sources, particularly in the chapter dealing with the environment. We are quite confident in that regard.

[The Chair, Conservative, Rob Merrifield]

Thank you very much.

Mr. Keddy, five minutes.

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

Thank you, Mr. Chairman.

Welcome to our witnesses. I have a couple of questions.

Mr. Geist, I'm struggling a little bit with the position you've taken. You talked about Bill C-11, the ACTA legislation, and a couple of issues—the statutory damages cap, the digital lock, and the term of copyright.

I think most of us here are in agreement with your summary. What I'm struggling with is that you seem to think that somehow this is all on the table—yet the negotiations aren't complete.

You can believe that, but what makes you correct? Since there is no position on the table, since there is no open access to the negotiations.... And all the negotiations I've ever participated in have been in private, and I suspect your own personal negotiations are mostly in private.

So you can say that it could happen, but I can say that I don't expect it will happen. And who's right?

[Dr. Michael Geist]

Listen, I would assume that the reason you've called me here, and the reason you're conducting this, is that there isn't a final agreement yet. One hopes that this helps inform a Canadian position, and ultimately helps inform what the agreement looks like.

What I am able to say is that based on the current positions that are being taken at the TPP, based, again, on leaked versions of the text that are out there, that are coming from major TPP participants, particularly the United States—their starting-point position in terms of what they want to see to happen, one that may be supported by a number of other TPP members, will have the implications that I've just described.

Do I know that this is what the final version will look like? I sure hope not.

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

Thank you, Mr. Geist, for that.

I want to back you up a little bit.