International Trade Committee on April 18th, 2016

[Meghan Sali]

For more information on this question, I would really encourage you to take a look at the work done by Professor Michael Geist. He has done some excellent work on copyright and Canadian cultural content. I think he really points his laser beam focus on the ISDS provisions. It's not necessarily that there is a piece of ruling that says in the TPP that you can or cannot do certain things. It's that we live under a constant fear of being sued if we do try to do things.

For example, Michael Geist said:

The TPP adopts a different approach with exceptions to the cultural exception. That includes limitations on financial contributions for Canadian content development and measures restricting access to online video content. While there is some debate on the full implications of the TPP provision, it seems certain that attempts to expand the Cancon system would be challenged under the agreement.

We would, regardless of whether or not there is a specific clause in the TPP saying you can or cannot do these things, certainly be challenged by our largely American huge media companies south of the border, who don't want to see these policies expanded. I think that's where we recognize that a government that is promoting Canadian culture and that wants to see the expansion of Canadian culture has to come to terms with that.

[Karen Ludwig, Liberal, New Brunswick Southwest, NB]

In what ways could we look for greater protection of intellectual property for pharmaceutical products?

[The Chair, Liberal, Mark Eyking]

Your time is up, but you know what? That sounds like a good question that you could give to your colleague in the next round.

We're going to go to the NDP now.

Madam Ramsey, you have five minutes. Go ahead.

[Tracey Ramsey, NDP, Essex, ON]

I'd like to thank you for your presentations today.

Meghan, of course, you represent OpenMedia, but I'd really like to thank Chris and Tom, because I think this is an excellent example of everyday Canadians understanding trade deals, understanding the implications, to ourselves, our communities, and our lives.

Meghan, I'd like to go a little deeper. You talked about the price to entry that we had when we entered in 2012, and how we had to accept restrictive rules around digital locks, going so far as to call these rules “draconian”. You stated that this was a price to entry.

Can you elaborate on the concept of Canada's price to entry and late entry to the talks, and how that has put us at a big disadvantage?

[Meghan Sali]

Absolutely.

Once again, Professor Geist has done a lot of fantastic work on this.

Essentially, we see in the TPP, and we see through access to information that has been done in the last several years, that there is a price of admission for Canada to enter the talks, and that originally the U.S. actually didn't want us to be a part of the Trans-Pacific Partnership.

While we were doing our copyright review and passing the Copyright Modernization Act in 2012, there was a U.S. demand on copyright and anti-counterfeiting reforms as a condition of entry. Just prior to entering negotiations, Canada agreed to these further conditions, and also that it can't hold up any chapter of the agreement if it is the lone opponent, which we did find ourselves, as many of the copyright provisions....

We have one of the more flexible systems of intellectual property and copyright that attempts to strike that balance with the rights of the public. The access to the public domain, as we all know, creates excellent innovation and opportunities for us to innovate and share culture. Unfortunately, we were the lone resister at the end with copyright terms, and we had to cave. We ended up with 20-year copyright term extensions, and in fact we ended up with absolutely no phase-in period for copyright term extensions.

If Canada ratifies the TPP, we will see 20 years of nothing at all entering the public domain. The costs to consumers are estimated at hundreds of millions per year. I think it is worth recognizing that TPP negotiators and senior officials were absolutely warned that Canada was at a disadvantage going in, yet nothing was done to address the issue.

[Tracey Ramsey, NDP, Essex, ON]

You briefly touched on the notice-and-takedown regime that is used in the U.S. and would be extended to all TPP member states. You characterized it as deeply flawed. In Canada, I know we have a notice-and-notice.

Can you explain your position and how this new regime differs from our existing rules?

[Meghan Sali]

Absolutely.

I think one of the only reasons we ended up keeping this in the TPP negotiations was that we fought a bloody political battle to get this and there was a lack of will in the House of Commons to go back and refight that battle.

Canada's notice-and-notice system is the pair to the notice-and-takedown system. It means that if a copyright holder sends a notice to a host of online content in the U.S., under the notice-and-takedown system, it's taken down immediately. In Canada, we have a system that both protects the privacy of individuals and also protects our free expression rights. If a copyright holder sees something that they believe infringes their intellectual property, they can send a notice that is then transmitted through the ISP of a Canadian without the identifying information attached. It says “We notice that this is infringing our copyright. Please take it down.”

There are several studies that have shown this has been effective, as fewer second and third notices are sent and people stop infringing content. It preserves our ability to express ourselves freely online. In effect, we're the envy of the world. Many people around the world have taken a look at Canada and said this is the way forward. Unfortunately, under the TPP, it's not the way forward, as Canada is the only country that will be allowed to continue the use of notice-and-notice. If I'm allowed to speculate, I imagine that there will be pressure to get rid of our notice-and-notice system in the future.

[Tracey Ramsey, NDP, Essex, ON]

With your website, you mentioned that LetsTalkTPP.ca has already received over 15,000 submissions, which have been sent to members of Parliament, the committee, and Global Affairs. You also mentioned you had a broad outreach of 130,000 Canadians. Are you surprised by the level of feedback that you received—the 15,000 submissions?

[Meghan Sali]

Yes. The barrier for our people to submit was very high. We made sure that the committee had all the identifying information they needed to officially consider all these messages as briefs, which include full address, phone number, email address, more things than we normally ask for when we ask people to engage. And we were shocked at the number of people, both in French and in English, who engaged with this tool and raised concerns across a number of issues, not just on the digital file but on the economy, health care, jobs, and the environment.

[Tracey Ramsey, NDP, Essex, ON]

Can you elaborate a little? We talked about the 20-year copyright term extensions in Canada. If the Canadian government were to renegotiate copyright terms in the TPP, what would OpenMedia like to see?

[Meghan Sali]

We certainly wouldn't like to see any copyright term extensions, and we know them. In the 2015 federal budget, we saw the copyright term extensions extended to life of the author plus 70 years, which is the standard of the TPP, and we would certainly like to see that repealed. We said life of the author plus 50 years right now, and we'd like to have a conversation in our 2017 copyright review about whether or not that is an adequate measure or whether or not we can roll that back. Not under the TPP, we'll be sued.

[The Chair, Liberal, Mark Eyking]

Thank you.

We're going to go back over to Mr. Dhaliwal.

[Sukh Dhaliwal, Liberal, Surrey—Newton, BC]

Thanks to the panel members.

To the panel, one thing I want to put straight on the record is that signing the agreement, I'm sure you understand, is not getting into the agreement. Our government, the Prime Minister, and also the Minister of International Trade have made it very clear that they will do public consultations before they ratify the agreement.

I'm sure you're aware that the minister, during her early mandate, was here in British Columbia consulting with the general public, and we, as a committee, are here today consulting with British Columbians.

Can you tell me what else the government can do so you see that the government is consulting with people?

[Meghan Sali]

I can speak to that briefly.

[Sukh Dhaliwal, Liberal, Surrey—Newton, BC]

Briefly, yes.

[Meghan Sali]

I've been talking a lot.

I would say that we would like to see town halls. We would like to see opportunities for actual members of the public, these people sitting behind me, to have their voices heard.

It's fantastic that we've had this opportunity. There are, I think, 12 witnesses per city, and while that's great, as I mentioned, Canada is a nation of 35 million people.

We would like to see an online component, where folks can engage with a discussion and a debate, where they can pose questions themselves, and where individuals who don't represent organizations, like me who has the privilege to come and sit here today, can get their views across.

[Sukh Dhaliwal, Liberal, Surrey—Newton, BC]

That's very fair.

Dr. Green, you and I, and other members of Parliament here, might not be ordinary middle-class Canadians, but you and I can be a source of good in those middle-class Canadians' ways of life.

Instead of outright objecting to this agreement, how can you constructively be part and parcel of the input so that this agreement is good for middle-class Canadians?

[Tom L. Green]

If we were at the point where the text was actually open to being renegotiated, I think basically what the Government of Canada should do is go back to the partners to the TPP and say, look, our people aren't happy with this, and actually, this was negotiated by a previous government that didn't have climate change on its radar, didn't really understand the environment and economy interface, and we seem to have an agreement here that's not going to work for us.

In terms of the consultation question, one thing I'd love to see.... If you go to the Government of Canada website about the TPP, it's not the kind of text that helps give you an independent reading of the agreement. It's already written as if the Government of Canada really wants to ratify the agreement. I find that deeply disconcerting. I'm just referring to chapter 20, the way it's written about all these protections it provides, and yet they don't match the text.

That would be a great thing to do for public consultation, to get more neutral in there and more independent, not so rah-rah-rah.

[Sukh Dhaliwal, Liberal, Surrey—Newton, BC]

Mr. Brand, you mentioned that if the U.S.A. and Japan ratify, we should ratify. I am certain you are aware that Japan is fast-tracking when it comes to ratifying, and the U.S.A. is going through its election process. If the U.S.A. and Japan ratify this agreement, would you be able to support it without any constructive changes to the agreement that we have?

[Chris Brand]

The point I was making was that there is a provision in the TPP that it only comes into force if 85%, I believe it is, of the total GDP of the member countries actually ratify it. Given that 85% number, that means that if either Japan or the U.S.A. decides not to ratify it, then the agreement would not come into force at all for any of the countries. My point was that, unless we know for sure that is going to happen, if we were to implement enabling legislation prior to Japan and the U.S.A. ratifying it, this would be us adopting all the disadvantages of the TPP without necessarily getting the advantages, because perhaps the U.S.A. cannot ratify it.

[Sukh Dhaliwal, Liberal, Surrey—Newton, BC]

Do you see any advantages in ratifying this agreement if Japan and the U.S.A. do ratify it?

[Chris Brand]

My real feeling is that there are more disadvantages in the TPP than there are advantages. The free trade part of the TPP, I like; I'm in favour of that. If you could cut out all the other stuff, then I would say yes, go for it, but with all the other stuff that's in there, I think the disadvantages of it outweigh the advantages.

[The Chair, Liberal, Mark Eyking]

Thank you.

Mr. Peterson, you have five minutes.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

Thank you, everyone, for being here and for participating in the panel.

I have what I think is a quick technical question on the copyright provisions. I'm having a little trouble technically in understanding the difference between how that process would work under the TPP and how it currently works, especially in light of annex 18-E of the agreement, which I'm led to believe allows Canada to continue using its notice-and-notice system. Can you add some clarification to what the process would be under TPP and how it differs from what we do in Canada now?

[Meghan Sali]

Yes, certainly. I'm happy to provide clarification there.

Canada was one of the only countries—Canada and Chile—that received carve-outs for their current copyright system. Canada will be able to continue to operate on a notice-and-notice system. I think the larger point is that we do not live just in Canada, and the global Internet is larger than just our Canadian borders. In fact, I would say that probably most of the content that people access every day on the Internet is hosted outside of Canada.

So while Canada will get to keep its notice-and-notice system, the 10 other nations of the Trans-Pacific Partnership, minus Chile, will be required to implement the notice-and-takedown system, which means that we will see more content disappear off the Internet. Whether or not it's in Canada is kind of outside the point.

I think the other point that has been well made by experts is that we should be looking to set an example for the rest of the world and to bring more of Canada to the world through these trade agreements. We should not have these fantastic ideas that we've had and have implemented in Canada—to the envy of the world—relegated to just Canadian citizens and not implemented in the rest of the world.