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TPP Negotiations in Canada Are Targeting an Open Internet

This week a gaggle of negotiators are hammering out the final details of the massive new Trans-Pacific Strategic Partnership Agreement. In these über-secret meetings, America has a specific goal: get its allies onboard with their plans to fight...
Justin Ling
Montreal, CA

Image via Flickr.
In a downtown Ottawa hotel, in a closed-room meeting, a gaggle of negotiators are hammering out the final details of the massive new Trans-Pacific Strategic Partnership Agreement (TPP). Canadian negotiators are probably putting up a bit of resistance. But in the über-secret meetings, the Americans have a specific goal: get its allies onboard with their plans to fight copyright pirates, even if it means attacking the internet itself.


Just a few blocks away, on Wednesday, open internet activists met to discuss the risks that TPP poses to an open internet. They say that users should be profoundly worried about the clandestine deal, and they are mobilizing to put pressure on the signatory countries.

“There is a real disconnect between what many of these countries are saying about citizen engagement and how they actually practice it,” says Jeremy Malcolm, a senior analyst at the Electronic Frontier Foundation, who organized the event. “That’s totally contrary to what happens at the TPP, where it’s only open to insiders and we have no reliable knowledge of what they’re even talking about here.”

The only way we even know about some of the huge new copyright impacts is because a draft copy of the secretive draft agreement was provided to Wikileaks. The draft shows that the U.S. is trying to get its partners onboard with a notice-and-takedown regime for copyright infringement.

You may know the practice by its Americanized nom de guerre: the Digital Millennium Copyright Act (DMCA).

The DMCA is a hugely powerful tool that allows copyright holders to go after those who use or host unlicensed copyrighted material by forcing content providers like Google and YouTube to suppress websites, videos, music, sheet music, lyrics, and images. It stacks the system so far in favour of the copyright holders that it affords Universal Music the power to order a 29-second video of a baby dancing to Prince be taken offline. (A lawsuit was filed against Universal and, years on, still hasn’t been resolved.)


America inserted the language to, effectively, make the the same legislation in the DMCA apply to all the agreement’s signatories: Australia, Brunei, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and Canada.

But here’s the catch: Canada has flatly refused to adopt a notice-and-takedown regime, instead opting for a notice-and-notice regime, and has fought having to bring the DMCA up north.

Canada’s system was introduced back in November 2011, via Bill C-11—the Copyright Modernization Act. It prescribed that if a copyright holder wants to go after an infringer, it needs to send a notice to the person’s internet service provider (ISP), a search engine, or a website host. That company is required to pass the notice on to the user, and to retain all records of the infringement for at least six months, up to a year, in case the copyright holder decides to file a lawsuit.

This has been the informal practice for years, and it’s been pretty effective. So much so that other countries, like Chile—who are also part of the TPP negotiations—adopted a modified version of it.

While there are some concerns with the program—which essentially lets corporations harass Canadians who download content for private use, and have private companies obtain their data even if the company hasn’t proven that the user is infringing copyright—it’s a compromise.

Statistics Roger provided show that they send out about 200,000 notices per year, with some users receiving more than one. Less than one percent of users ever receive more than two notices. That means only a fraction of users ever get the warning, and only a fraction of them would ever see the inside of a courtroom, where they could be liable for penalties of $5,000.


Yet the official regime in C-11 has yet to come into force. It’s been kicked down the line repeatedly since 2011 until, finally, the government announced in June that it would be taking effect by January 2015.

But the long-awaited measures will be, effectively, moot if the prime minister signs the existing language of TPP.

The draft, which is marked-up with opinions of the negotiators, shows that Canada has opposed the measures, and has tried to suggest alternatives. However, nobody is very optimistic that Canada is going to push very far.

“At the end of the day, there are going to be trade-offs,” says Michael Geist, Canada research chair in internet and e-commerce Law at the University of Ottawa. “They’re far more likely to trade access to sell a little bit more beef or pork in exchange for losing on some of these intellectual property issues.”

“That’s what trade negotiations are all about,” chips in Howard Knopf, an Ottawa intellectual property lawyer.

The hope, Geist says, is that Canada invested so much political capital in passing C-11 that it really sticks up for itself in the negotiations.

The two were presenting to a roomful of TPP negotiators at the Electronic Frontier Foundation’s downtown Ottawa lunch. The two say that the notice-and-takedown regime is something to be worried about, especially from a free speech perspective.

“The concern has long been that you’re going to get mistakes where something gets taken down inadvertently or just by error, because so much of this is automated, and that this is has a chilling effect,” Geist says.


But there’s another catch: Canada appears to be preparing another backdoor for copyright holders. As VICE reported in June, Bill S-4 will likely wedge open a loophole to allow so-called “copyright trolls” to extort users for small sums of money, with the threat of legal action, made possible by legalizing the secret exchange of users’ files between corporations.

That contradicts the process laid out by the courts. In February, a federal court put firm restrictions on how companies can get ahold of an ISP’s user data. Those restrictions go out the window when S-4 passes.

Neither the TPP agreement nor C-11 change that system.

Geist isn’t too concerned. He says that, if the notice-and-notice regime is mandatory, then ISPs won’t be very sympathetic to big movie studios that bang on their door and ask for a list of their subscribers. Geist says that ISPs while be especially gun-shy after the public spanking they received this year, when it came to light that they handed data to police—and, well, whichever federal agency wants it—willy-nilly.

“They’re feeling the public pressure on this issue,” says Geist.

Knopf, however, is of a different opinion

“I’m a bit more cynical,” he says.

“Big ISPs are very highly converged companies now, and they have content interests. They’re public companies and they have a duty to their shareholders to make as much money as possible. If somebody comes along and says: ‘We’ll give you a whole lot of money if you give us the names of people who downloaded a certain movie,’ and the law allows that without a court order, why wouldn’t they?”


Most ISPs, Knopf says, “have not fought on behalf of their subscribers at all.”

That’s been laid bare by evidence that most big ISPs refuse to kick up a fight when the G-men come a-knocking. But that is set to change since the Supreme Court ruled police requests for Canadians' user data from ISPs to obtain a search warrant is unconstitutional.

Given that users could be receiving the cautionary notice-and-notice emails from the ISPs, and the threatening invoices from the copyright trolls, there is room for confusion.

But the TPP doesn’t stop there. America is also looking to force its allies to extend the copyright term for intellectual property. It will extend the current 50-year copyright life to 70 years for books and movies, and nearly double the term for music, to 95 years—so you’ll be waiting another four-and-a-half decades more before you hear “The Lemon Song” playing in an elevator.

Had the TPP passed earlier, the BBC’s popular Sherlock remake would never have been possible.

“This transfer of welfare in favor of large corporate copyright owners will come at the cost of those who depend upon access to copyright works that would otherwise be in the public domain—libraries, students, artists, writers, and millions of other people,” read a letter signed by a coalition of dozens of stakeholders.

Geist says whether or not Canada will find compromise on the TPP deal comes down to a very simple question:

“If the goal is for the U.S. to say ‘we want everyone’s laws to look exactly like ours,’ then it’s just ‘yes’ or ‘no.’ If the goal is to actually have a system that is effective, both in respect to right’s holders but also in respect to internet users, notice-and-notice actually has proven to be an effective tool for that kind of educating approach.”  @justin_ling