Industry committee  I think that the government has tried to craft certain things with the intention of trying to exclude some of that, although I know that you raised some concerns on some of the changes to the trademark definitions around distinctiveness. I think there are legitimate concerns on that.

Industry committee  Thank you, Mr. Chair. Good afternoon. I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I have appeared before this committee on a number of occasions and as in past occasions I appear here in a personal capacity representing only my own views.

International Trade committee  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.

International Trade committee  Okay.

International Trade committee  I recognize that it's not over. The concern that I would have, and that I think thousands of people who've been represented by civil society groups and others have, is that under the scenario you've just described, it gets presented to everyone as a fait accompli: here's the deal; we didn't have the opportunity, or we couldn't provide it to you, all along the way, but here's the agreement at the end.

International Trade committee  Well, with respect, in that case, then, there's no reason to even hold the discussions, because we'll just wait to see what we get.

International Trade committee  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.

International Trade committee  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.

International Trade committee  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.

International Trade committee  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.

International Trade committee  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....

International Trade committee  I'm not aware of any trade deals that have included significant intellectual property provisions. The only agreement that I know we've negotiated and completed to date that have them is the Anti-Counterfeiting Trade Agreement. I was against it, but I was in good company, given that the European Parliament voted against it, and which all members of the European Union now, quite clearly, won't be ratifying.

International Trade committee  Right. Well, I guess there are two issues here. There's the issue of the relationships we have with other TPP partners, and concerns they would have about having a single country just simply taking the text, and, let's say, throwing it up on the Internet, which we assume, quite rightly, is a non-starter.

International Trade committee  I don't, and it's difficult. If I look, for example, at this first page that I received under the Access to Information Act, large amounts of it are redacted. There are clearly many stakeholders there, with contact names. Some are included, some are not. Even in terms of the list of those that signed NDAs and made that available, some of it's confidential, some of it's made public.

International Trade committee  It's a fair point. I think the best reference, especially on the intellectual property provisions in this, is the Anti-Counterfeiting Trade Agreement, ACTA, wherein the U.S., as they do with the TPP, maintains quite explicitly through the Office of the U.S. Trade Representative, the USTR, special groups that do have access.