Feed aggregator

Digital Dividends of Intellectual Property

Sara Bannerman - Sat, 2016/02/06 - 16:31
The World Bank's January Digital Dividends report assesses the extent to which information and communication technologies (ICTs) have contributed, over the past decades, to global development.  Its conclusion is that "while digital technologies have been spreading, digital dividends have not" (2).    It suggests two reasons for this: first, nearly 60% of the world is still offline, and, second, rising economic, social, and political inequality, all of which can be exacerbated by networks, stand in the way of full sharing in digital dividends.

The World Intellectual Property Organization (WIPO) has sometimes suggested that intellectual property is a "power tool" of economic development.  This view has long been challenged by those who note that IP comes with costs as well as benefits.  Costs can include higher prices in drugs and copyright materials, as well as reduced policy flexibility to respond to basic needs.  These costs, noted in a 2004 proposal by developing countries to WIPO, have now been acknowledged in WIPO's own formal Development Agenda.

The World Bank's report makes mention of intellectual property in several contexts.  It mentions:
  1. that innovation and growth depend on IP (p. 221, p. 302)
  2. that international IP regimes require greater harmonization (p. 62-63; p. 297)
  3. that IP needs to be balanced (p. 221) and that “countries can also allow the concept of “fair use” in intellectual property regulations” (p. 303; emphasis added).
The Bank's comments represent an view of IP that lacks nuance and balance, failing to take on board the extensive research done on the relationship between IP and development.  First, the World Bank's report, while noting the complexity of the relationship between ICTs and development, fails to take on board this same complexity when it comes to IP.  While arguing that innovation depends on IP, it fails to note the ways that IP can impede innovation (more on this below).

Second, Digital Dividends does not take adequately into account the ways that international IP regimes have failed to facilitate development and, at times, have stood in the way of development by impeding access to educational materials and pharmaceuticals.  The UK Commission on IP Rights long ago noted that "the interests of developing countries are best served by tailoring their intellectual property regimes to their particular economic and social circumstances" (156).  The Commission also argued that "there are strong arguments for greater flexibility in setting an optimum time to strengthen IP protection, taking into account the nation’s level of economic, social and technological development" (161).  International IP regimes take numerous options off the table when it comes to tailoring IP regimes; they greatly restrict states' flexibility in this regard.  The Commission called on developed countries to "discontinue the practice of using regional/bilateral agreements as a means of creating TRIPS-plus IP regimes in developing countries as a matter of course" (163).  This does not match with the World Bank's emphasis on the urgency of  further harmonization.

Third, the World Bank's report under-emphasizes the need for fair use and other limitations and exceptions to IP.  Here, Digital Dividends  utterly fails to take on board extensive research indicating the potential of such measures to contribute to development of various types, including development in the fields of education, health, innovation, technology, and clean technologies.

Jeremy de Beer and I have noted that the relationship between IP and development are a much more complex matter than the "power tool" view suggests.  Too much protection can be as bad as not having enough, contributing to gridlock (where IP is held by too many different people such that it impedes efficient market transactions) and high costs to the inputs of innovation (77).  (IP protection may also be irrelevant to encouraging innovation, if IP services are not available, as Rutenberg notes.)  Models of IP that emphasize access and openness in intellectual property can, de Beer and I argue, facilitate collaboration, universal participation, and adaptation of products to local communities (80).  Further, we note that IP can facilitate the concentration of wealth in the hands of multinationals (77).  Such inequality is exactly, as the Bank itself notes, what stands in the way of the potential of digital dividends.




The Trouble With the TPP, Day 25: The Treaties Within the Treaty

Michael Geist Law RSS Feed - Fri, 2016/02/05 - 11:52

This week’s signing of the TPP in New Zealand provides a useful reminder that a potential ratification means committing to far more than just one (very large) trade agreement. One of the Troubles with the TPP is that the intellectual property chapter requires all countries to ratify or accede to as many as nine international IP treaties. In other words, the treaties within the treaty are a core part of the obligations that come with TPP.

Article 18.7 specifies that all countries have already ratified or acceded to three IP treaties: the Patent Cooperation Treaty, Paris Convention, and Berne Convention. More notably, there are as many as six additional treaties that must be ratified or acceded in order to ratify the TPP:

  • Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks
  • Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980
  • International Convention for the Protection of New Varieties of Plants [MX propose: (1961) as revised in 1972, 1978 or] (1991) (UPOV Convention)
  • Singapore Treaty on the Law of Trademarks (2006)
  • WIPO Copyright Treaty
  • WIPO Performances and Phonograms Treaty

Earlier in the negotiations, the U.S. was hoping to include several more treaties including the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974).

Supporters of the TPP will argue that the impact on Canada is limited since we have either already acceded to these treaties or are in the process of doing so. However, the Canadian decision to significantly alter its IP laws in compliance with these treaties reflects the broader pressures that have come from the TPP.  Absent those pressures, it is far from certain that Canada would have agreed to be bound by all of these treaties.

In fact, according to earlier leaked drafts, Canada opposed including the IP treaty obligations for much of the negotiations. In the 2013 leaked text, only the U.S. and Australia supported the treaty provision with almost the other TPP countries (Canada, Chile, New Zealand, Malaysia, Peru, Brunei, Vietnam, Japan, and Mexico) opposed. Singapore indicated that it was willing to follow the consensus.  A year later, not much had changed. The May 2014 leaked version shows that the satellite signals convention was shifted out of the mandatory list, but everything else – including the Canadian opposition – remained roughly the same. By the end of the negotiations, Canada caved on the issue and started the process of complying with multiple IP treaties, confirming yet again that the TPP has already had an impact on Canadian law well before any decision on ratification has been made.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures)

The post The Trouble With the TPP, Day 25: The Treaties Within the Treaty appeared first on Michael Geist.

Toronto City Council Sides With CRTC in Rejecting Mayor Tory’s Support of Bell Appeal

Michael Geist Law RSS Feed - Fri, 2016/02/05 - 10:19

Last month, I wrote about the battle over the future of broadband in Canada with Toronto Mayor John Tory and Ottawa Mayor Jim Watson writing to the federal cabinet to support a Bell appeal to overturn a CRTC decision designed to foster increased competition for fast fibre Internet services. On the CRTC ruling, I noted that:

The upshot of the ruling was that companies such as Bell would be required to share their infrastructure with other carriers on a wholesale basis. The companies would enjoy a profit on those wholesale connections, but the increased competition would facilitate better services, pricing, and consumer choice. Indeed, the policy approach is similar to the one used for slower DSL broadband connections that has been instrumental in creating a small but active independent ISP community that serves hundreds of thousands of Canadians.

Bell marshalled opposition to the CRTC decision, including letters from Tory and Watson. By contrast, the City of Calgary and its mayor, Naheed Nenshi, filed a lengthy submission supporting the CRTC approach.

It turns out that the Toronto and Ottawa filings were not submitted on behalf of the cities, but rather reflect personal letters from the mayors of those cities. In Toronto, the letter raised the ire of city council, which yesterday debated a motion introduced by Councillor Mike Layton to express support for a more competitive approach and the CRTC decision. The motion stated:

1.  City Council support competitive and affordable internet prices for its residents and support the CRTC decision of July, 2015 for large telecom companies to make their fibre-optic networks available to small competitors at wholesale prices.
 
2.  City Council forward a copy of this decision to the Minister of Innovation, Science and Economic Development, the Minister of Infrastructure and Communities, the Minister of Finance, and the Minister of Canadian Heritage.
 
3.  City Council request, similar to the City of Calgary, an opportunity to consult with the Minister relating to the Minister’s recommendation to the Governor-in-Council on Bell’s Petition against the CRTC decision.

The motion was passed 28-5, representing a significant rebuke to Mayor Tory, and making Toronto the second major Canadian city to have its council consider the issue and express support for the CRTC decision.

The post Toronto City Council Sides With CRTC in Rejecting Mayor Tory’s Support of Bell Appeal appeared first on Michael Geist.

The TPP, IP and Canada: My Bloomberg TV Interview

Michael Geist Law RSS Feed - Fri, 2016/02/05 - 10:12

I appeared yesterday on Bloomberg Television to discuss the impact of the TPP on Canadian intellectual property law. The discussion focused on the need for consultation and to take a closer look at the provisions in the agreement.

The post The TPP, IP and Canada: My Bloomberg TV Interview appeared first on Michael Geist.

The Trouble With the TPP, Day 24: Missing Balance on IP Border Measures

Michael Geist Law RSS Feed - Thu, 2016/02/04 - 11:07

The day after Canada signed the TPP (and a Leger poll found huge opposition to the agreement’s IP and ISDS provisions), the shift toward consultation and study can continue in earnest. Chrystia Freeland, Canada’s Minister of International Trade, used the signing to emphasize once again that signing is not the same as ratifying and that the government is committed to a robust Parliamentary and public review of the agreement.

The Trouble with the TPP series continues today with another example of the lack of balance in the text. An earlier post noted how in the TPP  rights holders’ provision are often mandatory, while those for users are treated as optional. The lopsided approach is also evident in the border measures rules. This week I discussed the expansion of border measures provisions without court oversight, which could lead to customs officials being asked to make difficult legal assessments on whether to detain goods entering the country.

Canadian law currently includes several safeguards to mitigate the risk of detention for importers and other businesses. Given the possibility that detention can be used by competitors to delay entry of legitimate goods into the country, limitations are an important part of any legislative package. For example, Canadian law limits detention periods in the Copyright Act:

Subject to subsection (3), the customs officer shall not detain, for the purpose of enforcing section 44.01, the copies for more than 10 working days –  or, if the copies are perishable, for more than five days -  after the day on which the customs officer first sends or makes available a sample or information to the copyright owner under subsection (1). At the request of the copyright owner made while the copies are detained for the purpose of enforcing section 44.01, the customs officer may, having regard to the circumstances, detain non-perishable copies for one additional period of not more than 10 working days.

Similarly, Canadian law allows for damages against the copyright owner who commenced proceedings if they are dismissed or discontinued, recognizing the potential harm to a legitimate business:

The court may award damages against the owner of copyright who commenced proceedings referred to in subsection 44.04(3) to the owner, importer, exporter or consignee of the copies who is a party to the proceedings for losses, costs or prejudice suffered as a result of the detention of the copies if the proceedings are dismissed or discontinued.

These safeguards are consistent with provisions found in the TRIPS Agreement, but are not included in the TPP. In fact, Kim Weatherall identifies seven TRIPS border measures balancing provisions that are not found in the TPP.

Proponents of the TPP will argue that there is nothing to stop TPP countries from adding these safeguards to their national laws (as Canada has done in some instances). Yet the benefits of the treaty are supposed to provide Canadian businesses with consistent rules and protections when they sell into other TPP markets. Without mandated safeguards, Canadian exporters face the prospect of unbalanced border measures when they sell IP-related products into the rest of the TPP.  As with copyright and patents, the TPP rules move in one direction: more restrictions and few enforceable safeguards or limitations to ensure a balanced legal framework.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?)

The post The Trouble With the TPP, Day 24: Missing Balance on IP Border Measures appeared first on Michael Geist.

The Trouble With the TPP, Day 23: On Signing Day, What Comes Next?

Michael Geist Law RSS Feed - Wed, 2016/02/03 - 10:15

Later today, the 12 countries that make up the Trans Pacific Partnership, a massive global trade deal that includes Canada, the United States, and Japan, will gather in New Zealand to formally sign the agreement (the official signing day is February 4th, but with time zone differences, the signing ceremony starts at 5:30 pm ET on the 3rd). Signing the TPP is a major step forward for the controversial treaty, but questions still abound over whether it will be ratified and take effect. The Trouble with the TPP series, which I initially planned to wrap up today having examined issues ranging from copyright term extension to the weak cultural exception, takes a one-day break from substantive concerns to focus on the future. However, given that there are still some important issues to be considered, the series will continue well into this month.

While the Liberal government has been cautious about expressing its support – International Trade Minister Chrystia Freeland has been consistent in calling for consultation not conclusions – the decision to sign the TPP was never much in doubt. The agreement contains incentives to be an “original signatory”, since only those countries qualify for the rules related to entry into force of the agreement. To stay on the sidelines at this early stage might have kept Canada out of the TPP for good.

Moreover, as Freeland emphasized in a public letter released last week, signing a treaty does not create binding legal obligations. Indeed, Canada has a fair number of international treaties that it has signed but not ratified, including a 1988 Convention on International Bills of Exchange and International Promissory notes. The same is true for the United States, which has signed the United Nations Convention on the Rights of the Child, but has not ratified it.

The big question was never whether Canada would sign, but rather what comes next. The TPP will not take effect for at least two years, giving the government ample time to engage in the consultation and study that was largely absent during a negotiation process that was notable primarily for its secrecy. Proponents of the TPP will urge the government to implement quickly, yet there is no advantage to do so and considerable risk that Canada would bear the costs of the agreement without ever realizing the benefits.

Freeland and her Parliamentary Secretary David Lametti have already engaged in more public consultations on the TPP in two months than the Conservative government did during years of negotiations.

My weekly technology law column (Toronto Star version, homepage version) notes that there is far more work to be done.

First, Canadians must understand the costs and benefits of the TPP in order to provide useful feedback. The government summaries released last fall frequently present a misleading picture of the agreement. For example, the documents claim that Canada secured a broad exception for the cultural industries. However, on closer inspection it turns out that Canada did not get a full cultural exception as the TPP mandates unprecedented restrictions on policies to support the creation of Canadian content.

The shocking cultural restrictions are the tip of the TPP iceberg. The summaries on copyright and patent reform fail to mention significant legislative changes that would could raise education and health care costs. There is no reference to the privacy implications of the deal and no acknowledgement that other countries obtained protections not granted to Canada. The government should go back to the drawing board to present a more balanced, accurate picture of the agreement and its implications for Canada.

Second, the Liberal government should conduct the economic and legal studies that were seemingly missing from the negotiations. Unlike countries such as New Zealand that have estimated the costs of some TPP reforms, Canadians have been left to guess at the real price of the agreement. In fact, several recent reports have projected very modest benefits for Canada that rank among the lowest in the TPP.

Third, the government’s emphasis on transparency must extend to the TPP consultations. That requires more than just listing consultation events or inviting the public to email their views. There should be public events streamed online and outcomes from other meetings should be posted online. Moreover, Canadians should have access to consultation submissions (with individual privacy protected as desired) to allow them to better gauge the public response.

Fourth, the TPP consultation should go beyond whether to support or reject the deal. Walking away remains a possibility, but if the agreement moves toward ratification, the government should explore flexibilities within the treaty or negotiate side letters to limit the negative consequences. Moreover, a late push to revisit issues such as dispute resolution (as is happening with the Canada – European Union agreement) should remain on the table. Even as Canada signs the TPP, implementation remains far from a done deal.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight)

The post The Trouble With the TPP, Day 23: On Signing Day, What Comes Next? appeared first on Michael Geist.

Canada is About to Sign the Pacific Trade Deal. What Next?

Michael Geist Law RSS Feed - Wed, 2016/02/03 - 10:05

Appeared in the Toronto Star on February 1, 2016 as Canada is About to Sign the Pacific Trade Deal. What Next?

Later this week, the 12 countries that make up the Trans Pacific Partnership, a massive global trade deal that includes Canada, the United States, and Japan, will gather in New Zealand to formally sign the agreement. Signing the TPP is a major step forward for the controversial treaty, but questions still abound over whether it will be ratified and take effect.

While the Liberal government has been cautious about expressing its support – International Trade Minister Chrystia Freeland has been consistent in calling for consultation not conclusions – the decision to sign the TPP was never much in doubt. The agreement contains incentives to be an “original signatory”, since only those countries qualify for the rules related to entry into force of the agreement. To stay on the sidelines at this early stage might have kept Canada out of the TPP for good.

Moreover, as Freeland emphasized in a public letter released this week, signing a treaty does not create binding legal obligations. Indeed, Canada has a fair number of international treaties that it has signed but not ratified, including a 1988 Convention on International Bills of Exchange and International Promissory notes. The same is true for the United States, which has signed the United Nations Convention on the Rights of the Child, but has not ratified it.

The big question was never whether Canada would sign, but rather what comes next. The TPP will not take effect for at least two years, giving the government ample time to engage in the consultation and study that was largely absent during a negotiation process that was notable primarily for its secrecy. Proponents of the TPP will urge the government to implement quickly, yet there is no advantage to do so and considerable risk that Canada would bear the costs of the agreement without ever realizing the benefits.

Freeland and her Parliamentary Secretary David Lametti have already engaged in more public consultations on the TPP in two months than the Conservative government did during years of negotiations.

But there is far more work to be done.

First, Canadians must understand the costs and benefits of the TPP in order to provide useful feedback. The government summaries released last fall frequently present a misleading picture of the agreement. For example, the documents claim that Canada secured a broad exception for the cultural industries. However, on closer inspection it turns out that Canada did not get a full cultural exception as the TPP mandates unprecedented restrictions on policies to support the creation of Canadian content.

The shocking cultural restrictions are the tip of the TPP iceberg. The summaries on copyright and patent reform fail to mention significant legislative changes that would could raise education and health care costs. There is no reference to the privacy implications of the deal and no acknowledgement that other countries obtained protections not granted to Canada. The government should go back to the drawing board to present a more balanced, accurate picture of the agreement and its implications for Canada.

Second, the Liberal government should conduct the economic and legal studies that were seemingly missing from the negotiations. Unlike countries such as New Zealand that have estimated the costs of some TPP reforms, Canadians have been left to guess at the real price of the agreement. In fact, several recent reports have projected very modest benefits for Canada that rank among the lowest in the TPP.

Third, the government’s emphasis on transparency must extend to the TPP consultations. That requires more than just listing consultation events or inviting the public to email their views. There should be public events streamed online and outcomes from other meetings should be posted online. Moreover, Canadians should have access to consultation submissions (with individual privacy protected as desired) to allow them to better gauge the public response.

Fourth, the TPP consultation should go beyond whether to support or reject the deal. Walking away remains a possibility, but if the agreement moves toward ratification, the government should explore flexibilities within the treaty or negotiate side letters to limit the negative consequences. Moreover, a late push to revisit issues such as dispute resolution (as is happening with the Canada – European Union agreement) should remain on the table. Even as Canada signs the TPP, implementation remains far from a done deal.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Canada is About to Sign the Pacific Trade Deal. What Next? appeared first on Michael Geist.

The Trouble with the TPP, Day 22: Expanding Border Measures Without Court Oversight

Michael Geist Law RSS Feed - Tue, 2016/02/02 - 10:10

The Trouble with the TPP series continues with IP enforcement and border measures provisions, which are illustrative of Jim Balsillie’s concern about Canada’s failure to set its own IP policy. Yesterday’s post noted that the U.S. demanded that Canada provide a report card every six months on its customs activities, meet on the issue whenever the U.S. demands, and face the possibility of a dispute settlement complaint for failing to comply with these rules. The TPP goes further, however, as it will require Canada to create a system to allow for the detention of goods with “confusingly similar” trademarks.

Article 18.76 of the TPP establishes “special requirements related border measures” which includes allowing for applications to detain suspected confusingly similar trademark goods as well as  procedures for rights holders to suspend the release of those goods. The required change is striking since Canada just overhauled its rules for border measures under pressure from the U.S. The Canadian approach did not include “confusingly similar” trademark goods, recognizing that such goods are not counterfeit and that requiring border guards (who rarely have legal training) to make exceptionally difficult judgments about whether imported goods violate the law is bad policy.

In 2011, Daniel Drapeau, a lawyer with Smart & Biggar, emphasized the difference between counterfeits and confusingly similar trademark goods at a Canadian Heritage hearing on counterfeiting:

Nor are counterfeits goods that bear a trademark that is confusingly similar to the genuine one, say, some other form of reptile besides the little alligator. These are not counterfeits. Counterfeits reproduce the trademark.

Kim Weatherall explains why the extension of trademark infringement to “confusingly similar” marks is controversial around the world:

The extension to cases of trade mark infringement involving ‘confusingly similar’ marks is internationally controversial, because (a) it requires customs officials to engage in legal analysis that is arguably beyond their level of expertise, (b) it creates the potential for competitive activity to be caught by and fought out at the level of border measures where it would be more appropriate for those fights to occur through the courts (ie it allows a company that believes a competitor is ‘too close’ to use border measures); and (c) it creates potential for application of border measures against generic pharmaceuticals, because allegations are regularly raised that generic pharmaceutical companies are using confusingly similar marks, thus potentially impacting on access to medicine.

Given those concerns, it should not come as a surprise that Canada opposed the extension to confusingly similar trademarks throughout the TPP negotiations. In fact, earlier leaked drafts show that almost half the TPP opposed the extension (Singapore, Brunei, Malaysia, Vietnam, and Canada). Yet as is the case in so many other areas, Canada ultimately caved on the issue and if we decide to ratify the TPP, will be required to change domestic law months after passing new rules specifically designed to provide enhanced border measures provisions.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card)

The post The Trouble with the TPP, Day 22: Expanding Border Measures Without Court Oversight appeared first on Michael Geist.

The Trouble with the TPP, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card

Michael Geist Law RSS Feed - Mon, 2016/02/01 - 11:03

This weekend, former Research in Motion co-CEO Jim Balsillie wrote a must-read opinion piece in the Globe and Mail on the TPP. Balsillie makes a compelling case for how Canadian IP policy has failed in light of decisions to consistently cave to foreign pressures:

Starting in the 1980s, Canadian policy makers and politicians blindly bought the narrative lobbied by foreign corporations, first in the pharmaceutical industry and then across all sectors, that stronger IP protection would lead to more domestic innovation and prosperity.

Three decades later, our pharma R&D has declined dramatically and drug prices for Canadian consumers are among the highest in the world. Our largest technology companies are much smaller now than 10 years ago and we have zero growth in innovation outputs over the past 30 years.

We should have learned our lesson by now, and yet the same outdated thinking from the 1980s is back on display from today’s TPP proponents: Focus on aligning our domestic IP laws with the U.S. system and hope for the best. TPP needs to be assessed not for its legal purity or alignment to U.S. laws, but for the economic impacts colonial IP policies have on Canada. After all, Canada has aligned its laws with the United States both directly and indirectly in several international treaties over the past three decades, and our innovation performance always faltered thereafter.

The Trouble with the TPP series has already reviewed how the TPP offers more of the same through policies such as copyright term extension and locking in extended patent protections. The agreement also addresses IP enforcement and border measures, just months after Canada changed its rules to provide more protections and enforcement.

For example, Article 18.76 of the TPP seeks to expand the power of customs officials by granting them the right to initiate border measures without court oversight, even for goods that are in-transit (ie. not destinated to stay within the country). The in-transit issue was a major source of U.S. lobbying during the debate over Bill C-8, Canada’s anti-counterfeiting bill. Canada ultimately excluded in-transit shipments from the ambit of the bill with the government arguing that “our government doesn’t believe taxpayers should be on the hook for the cost of seizing counterfeit products that are destined for the United States that do not threaten health or safety.”

The U.S. hoped to reverse Bill C-8 through the TPP.  In-transit seizures are mandated in the agreement, but footnote 122 in the TPP states:

As an alternative to this subparagraph, a Party shall instead endeavour to provide, if appropriate and with a view to eliminating international trade in counterfeit trademark goods or pirated copyright goods, available information to another Party in respect of goods that it has examined without a local consignee and that are transhipped through its territory and destined for the territory of the other Party, to inform that other Party’s efforts to identify suspect goods upon arrival in its territory.

With the “endeavour to provide” requirement, this provision appears to be another best efforts provision that is not a strict requirement. Yet the U.S. wanted a clear requirement from Canada and apparently demanded a side letter between the two countries:

Each government shall provide to the other, on a semi-annual basis, a compilation of notifications provided to the other government’s customs administration under footnote 122 of Article 18.76.5(c), highlighting description and quantity of the suspected infringing goods.  Finally, representatives of both governments shall meet upon the request of the other government to discuss any aspect of this agreement.


I have the honor to propose that this letter and your letter of confirmation in reply, equally valid in English and French, shall constitute an agreement between our two Governments, subject to dispute settlement under Chapter 28 of the TPP Agreement, which shall enter into force on the date of entry into force of the TPP Agreement as between Canada and the United States.

In other words, the Canadian obligation is not optional. The U.S. is requiring Canada to provide a report card every six months on its customs activities, meet on the issue whenever the U.S. demands, and face the possibility of a dispute settlement complaint for failing to comply with these rules. While some might view this as a modest requirement, the U.S. does not require similar reports from anyone else. Rather, consistent with the history articulated in Balsillie’s piece, Canada is once again bullied into complying with U.S. demands on intellectual property laws and enforcement.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules)

The post The Trouble with the TPP, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card appeared first on Michael Geist.

Canada considers copyright registration - again

Sara Bannerman - Sun, 2016/01/31 - 18:07
The Embassy News reports that Canada is considering making the extra twenty years' term extension under the Trans-Pacific Partnership Agreement conditional on copyright registration.

Such a move would have many advantages, and would permit those works that are not registered to fall into the public domain.  However, Embassy notes that the Berne Convention, a foundational copyright treaty, prohibits making formalities such as registration a condition of granting copyright.  As Embassy notes, the Berne Convention is ambiguous as to whether this prohibition lasts for the full term of copyright, or whether it covers only the initial Berne-mandated term of life plus fifty years, leaving countries free to do what they want after that.

This isn't the first time that Canada has hit up against this dilemma.  In 1931 Canada passed a Copyright Act that also required certain types of registration, and the same question arose.  At issue, in particular, was the requirement that copyright collectives register lists of the works they claimed to grant licenses in.  It was felt that copyright collectives were claiming copyright infringement in works they had no rights in and that, to hold them accountable, lists of their works should be published.

No major challenge to Canada's provisions was ever brought under the Berne Convention.

For more details, see The Struggle for Canadian Copyright, pp. 121-125.

Here are the relevant sections of Canada's 1931 Copyright Act:





While the proposed option could be a move demonstrating much-needed copyright innovation with the public interest in mind, an even better option would be not to implement the TPP.

The Trouble with the TPP, Day 20: Unenforceable Net Neutrality Rules

Michael Geist Law RSS Feed - Fri, 2016/01/29 - 10:15

One of President Barack Obama’s selling points for the TPP has been claims that it helps preserve “an open and free Internet.” The references to an open and free Internet, which is closely linked to net neutrality, may strike a chord with those concerned with digital issues. However, the Trouble with the TPP is that a close examination of the text and a comparison with existing net neutrality rules in many TPP countries reveals that it doesn’t advance the issue. In fact, the standards are so weak and unenforceable that at least half of the TPP countries already far exceed them.

Article 14.10
of the TPP provides:

Subject to applicable policies, laws and regulations, the Parties recognise the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of a consumer’s choice available on the Internet, subject to reasonable network management;
(b) connect the end-user devices of a consumer’s choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer’s Internet access service supplier.

As a starting point, this is not mandated obligation. The TPP countries merely “recognize” the benefits of some net neutrality provisions. For those countries without net neutrality rules, there is no requirement to implement anything in order to comply with the agreement. In fact, if there was any doubt about the lack of enforceability, the entire provision is prefaced by the reference to “subject to applicable policies, and regulations.” In other words, the provision doesn’t advance anything for countries without net neutrality provisions.

For those with net neutrality provisions, the TPP typically falls well short of what they already have in place. In Canada, the CRTC’s Internet Traffic Management Practices go far beyond the TPP, offering more comprehensive coverage, a complaints mechanism, and enforceable obligations overseen by the CRTC.  Many other TPP countries also have stronger net neutrality rules:

  • The U.S. FCC net neutrality order prevents ISPs from blocking legal content, throttling on the basis on content, applications or services, and from charging content providers for paid prioritization.
  • Peru adopted net neutrality rules in 2012, preventing ISPs from blocking interfering, discriminating, or restricting internet users from using an application regardless of its nature, origin or destination
  • Mexico has passed amendments to its telecommunications legislation that adopt net neutrality.
  • Singapore introduced a limited net neutrality policy in 2011 that prevents ISPs from blocking legitimate internet content, and forbids ISPs from imposing measures which effectively render content inaccessible or unusable.
  • Chile has had net neutrality laws since 2010. The law requires ISPs “ensure access to all types of content, services or applications available on the network and offer a service that does not distinguish content, applications or services, based on the source of it or their property.
  • Japan’s net neutrality policy is centred on fairness in network use with fairness in network cost sharing. Japanese ISPs have adopted packet shaping in order to insure consistent internet speeds, but recognize that packet shaping should be used a last resort, and ISP should focus on enhancing network capacity.

Net neutrality has also emerged as a policy issue in other TPP countries such as Australia and New Zealand. The net neutrality provisions may be promoted as a positive step forward by TPP supporters, but they are unlikely to have much, if any, impact.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector)

The post The Trouble with the TPP, Day 20: Unenforceable Net Neutrality Rules appeared first on Michael Geist.

The Trouble with the TPP, Day 19: No Canadian Side Agreements to Advance Tech Sector

Michael Geist Law RSS Feed - Thu, 2016/01/28 - 10:16

The Trouble with the TPP series this week has focused on issues such as the failure to obtain a full cultural exception and the weak e-commerce rules that do little to assist online businesses, particularly small and medium sized enterprises. Yet the Canadian digital failure goes even further. While other countries saw the opportunity to use the TPP to advance their domestic online sector through side agreements, Canada remained on the sidelines. Indeed, as some leading critics such as Jim Balsillie have noted, the Canadian government did little to even consult with Canada’s technology sector.

Consider a side letter on online education between Australia and Vietnam. The side letter opens the door to technical assistance and pilot programs for online education between the two countries, providing for assistance on distance education delivery models, assessing applications from Australian providers to deliver online education, and work to recognize the qualifications obtained from such courses. Moreover, the letter states that:

Viet Nam will cooperate with Australia to facilitate a pilot program under which Australian universities would deliver courses in Viet Nam that may be delivered wholly or substantially online.

The letter continues with details on the pilot program, which is geared toward enhancing Australia’s higher education presence in the country and taking advantage of digital opportunities. This a good strategy for Australia, but raises the question of why Canada failed to take similar steps to make digital inroads in TPP countries.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy)

The post The Trouble with the TPP, Day 19: No Canadian Side Agreements to Advance Tech Sector appeared first on Michael Geist.

Why Canadian Telecom Companies Must Defend Your Right to Privacy

Michael Geist Law RSS Feed - Thu, 2016/01/28 - 09:58

In today’s communications driven world, no one collects as much information about its customers as telecom companies. As subscribers increasingly rely on the same company for Internet connectivity, wireless access, local phone service, and television packages, the breadth of personal data collection is truly staggering.

Whether it is geo-location data on where we go, information on what we read online, details on what we watch, or lists identifying with whom we communicate, telecom and cable companies have the capability of pulling together remarkably detailed profiles of millions of Canadians.

My weekly technology law column (Toronto Star version, homepage version) notes that how that information is used and who can gain access to it has emerged as one the most challenging and controversial privacy issues of our time. The companies themselves are tempted by the prospect of “monetizing” the information by using it for marketing purposes, law enforcement wants easy access during criminal investigations, and private litigants frequently demand that the companies hand over the data with minimal oversight.

As a result, courts and privacy commissioners have regularly faced questions about the rights and responsibilities associated with subscriber information. For example, the Privacy Commissioner of Canada ruled last year that Bell’s “relevant advertising program”, which provided advertisers with the ability to target ads based on subscriber personal information, ran afoul of Canadian privacy law because the company simply presumed that it could use the information without an explicit, opt-in consent.

The Canadian courts have similarly grappled with a myriad of privacy issues, including whether basic subscriber information carries with it a reasonable expectation of privacy (the Supreme Court of Canada ruled that it does) or if an Internet provider can be required to reveal the identities of Internet subscribers in a copyright infringement lawsuit (it can subject to conditions limiting how the information is used).

Earlier this month, an Ontario court escalated the privacy rights of subscribers in a high-profile case involving Rogers and Telus, who were asked by police to provide “tower dump” records that would have revealed information on thousands of cellphone users. The two telecom companies rejected the request, noting that the disclosure would affect tens of thousands of people who were merely located in the vicinity of a cellphone tower during the specified period.

Given the detailed information that would have been available (including billing and credit card information), the lack of safeguards over the information, and the over breadth of the request, the companies argued that an order to produce the information would breach the reasonable expectation of privacy of the affected cellphone users. The court proceeded to establish a series of guidelines aimed at forcing law enforcement to provide detailed justifications for disclosures in similar circumstances.

While that alone would be a notable ruling, the court went further by ruling that the companies had a positive obligation to defend the privacy interests of their subscribers.

Lawyers representing the police had questioned whether the telecom companies were entitled to raise the privacy rights of their subscribers. The court noted that individual cellphone users were unlikely to appear in court to defend their privacy interests, meaning their concerns would be unaddressed unless the companies took it upon themselves to question the production order. Moreover, since customer contracts reference privacy rights, the court reasoned that the companies were contractually obligated to assert the privacy interests of their subscribers.

The confirmation that telecom and Internet providers are obligated to defend the privacy interests of their subscribers represents a sea change in approach. For years, companies have been largely content to remain on the sidelines, arguing that they are merely intermediaries without the ability to step into the shoes of their customers. In fact, even in the Telus and Rogers tower dump case, Bell was conspicuously absent.

The courts are now sending the unmistakable message that the privacy interests of subscribers are too important to be left without representation. Companies promise privacy protection in their contracts and that includes stepping up to defend customers to ensure that personal information is properly safeguarded, that appropriate justifications for disclosure are provided, and the information is not misused in any way.

The post Why Canadian Telecom Companies Must Defend Your Right to Privacy appeared first on Michael Geist.

Why Telecoms Must Defend Your Right to Privacy

Michael Geist Law RSS Feed - Thu, 2016/01/28 - 09:52

Appeared in the Toronto Star on January 25, 2016 as Why Your Telecom Must Defend Your Right to Privacy

In today’s communications driven world, no one collects as much information about its customers as telecom companies. As subscribers increasingly rely on the same company for Internet connectivity, wireless access, local phone service, and television packages, the breadth of personal data collection is truly staggering.

Whether it is geo-location data on where we go, information on what we read online, details on what we watch, or lists identifying with whom we communicate, telecom and cable companies have the capability of pulling together remarkably detailed profiles of millions of Canadians.

How that information is used and who can gain access to it has emerged as one the most challenging and controversial privacy issues of our time. The companies themselves are tempted by the prospect of “monetizing” the information by using it for marketing purposes, law enforcement wants easy access during criminal investigations, and private litigants frequently demand that the companies hand over the data with minimal oversight.

As a result, courts and privacy commissioners have regularly faced questions about the rights and responsibilities associated with subscriber information. For example, the Privacy Commissioner of Canada ruled last year that Bell’s “relevant advertising program”, which provided advertisers with the ability to target ads based on subscriber personal information, ran afoul of Canadian privacy law because the company simply presumed that it could use the information without an explicit, opt-in consent.

The Canadian courts have similarly grappled with a myriad of privacy issues, including whether basic subscriber information carries with it a reasonable expectation of privacy (the Supreme Court of Canada ruled that it does) or if an Internet provider can be required to reveal the identities of Internet subscribers in a copyright infringement lawsuit (it can subject to conditions limiting how the information is used).

Earlier this month, an Ontario court escalated the privacy rights of subscribers in a high-profile case involving Rogers and Telus, who were asked by police to provide “tower dump” records that would have revealed information on thousands of cellphone users. The two telecom companies rejected the request, noting that the disclosure would affect tens of thousands of people who were merely located in the vicinity of a cellphone tower during the specified period.

Given the detailed information that would have been available (including billing and credit card information), the lack of safeguards over the information, and the over breadth of the request, the companies argued that an order to produce the information would breach the reasonable expectation of privacy of the affected cellphone users. The court proceeded to establish a series of guidelines aimed at forcing law enforcement to provide detailed justifications for disclosures in similar circumstances.

While that alone would be a notable ruling, the court went further by ruling that the companies had a positive obligation to defend the privacy interests of their subscribers.

Lawyers representing the police had questioned whether the telecom companies were entitled to raise the privacy rights of their subscribers. The court noted that individual cellphone users were unlikely to appear in court to defend their privacy interests, meaning their concerns would be unaddressed unless the companies took it upon themselves to question the production order. Moreover, since customer contracts reference privacy rights, the court reasoned that the companies were contractually obligated to assert the privacy interests of their subscribers.

The confirmation that telecom and Internet providers are obligated to defend the privacy interests of their subscribers represents a sea change in approach. For years, companies have been largely content to remain on the sidelines, arguing that they are merely intermediaries without the ability to step into the shoes of their customers. In fact, even in the Telus and Rogers tower dump case, Bell was conspicuously absent.

The courts are now sending the unmistakable message that the privacy interests of subscribers are too important to be left without representation. Companies promise privacy protection in their contracts and that includes stepping up to defend customers to ensure that personal information is properly safeguarded, that appropriate justifications for disclosure are provided, and the information is not misused in any way.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Why Telecoms Must Defend Your Right to Privacy appeared first on Michael Geist.

The Trouble with the TPP, Day 18: Failure to Protect Canadian Cultural Policy

Michael Geist Law RSS Feed - Wed, 2016/01/27 - 10:28

Culture and the TPP has yet to garner much attention, but that is a mistake. The TPP departs from longstanding Canadian policy by not containing a full cultural exception and creates unprecedented restrictions on policies to support the creation of Canadian content. The Canadian position on trade and culture has been consistent for decades with successive governments requiring a full exemption for the cultural industries. The exemption, which is found in agreements such as NAFTA and CETA, give the government full latitude to implement cultural policies to support the creation of Canadian content.

The TPP’s approach to culture is different from Canada’s other trade agreements. Rather than include an exception chapter or provision, the TPP contains several annexes that identify “non-conforming measures.” This allows countries, including Canada, to list exceptions to specific TPP rules. Without an exception for the cultural industries, the TPP rules banning local presence requirements and national treatment for service providers would place Canadian cultural rules at risk. Annex II includes a Canadian exception for the cultural industries. The exception is promoted in the government’s summary of the TPP, which claims that the agreement:

includes a broad reservation under Services and Investment for existing and future programs and policies with respect to cultural industries that aim to support, directly or indirectly, the creation, development or accessibility of Canadian artistic expression and content.


That led to media coverage reporting that Canada had obtained a full exception to protect cultural policies. A closer look at the actual text, however, reveals that Canada did not obtain a full cultural exception. Rather, there are two notable exceptions to the general cultural exception, which state:

Canada reserves the right to adopt or maintain any measure that affects cultural industries and that has the objective of supporting, directly or indirectly, the creation, development or accessibility of Canadian artistic expression or content, except:

a) discriminatory requirements on services suppliers or investors to make financial contributions for Canadian content development; and 

b) measures restricting the access to on-line foreign audiovisual content. 


As someone who has argued against Netflix regulation or expanded Cancon rules, there is an appeal to these exceptions to the exception. Yet it is shocking to find the Canadian government locking itself into rules that restrict its ability to consider expanding Cancon contributions to entities currently exempt from payment or adopting rules that limit regulatory jurisdiction over foreign online video providers that target Canadian consumers. Expanding Cancon payments may be a bad idea today (the Ontario and Quebec governments along with the CBC have suggested it is a good idea), but as the market evolves it is certainly possible that some form of regulation will be contemplated tomorrow.

The TPP provision appears to be a permanent ban on a “Netflix tax” or virtually any expansion of Cancon contributions to currently exempt services. The Conservatives campaigned against such a levy and no opposition party expressly supported required payments for providers such as Netflix. However, the Liberals did promise during the election campaign to gather data on online video services “with particular focus on consumer habits, the availability of Canadian films, and revenues and expenses associated with these services.” That is useful information, but its value is diminished if the government is committing itself through the TPP to never explore certain policies to benefit Canadian content development. In fact, the scope of the provision goes far beyond just online video: the music industry and publishing industry would face similar restrictions.

The exception may be limited to “discriminatory” Cancon payment requirements, but currently exempt providers (such as online video services) will argue that any Cancon payments would be discriminatory against them, because they do not enjoy many of the protections and benefits that go to the Canadian companies that make Cancon contributions as part of a regulatory quid pro quo (Netflix raised the concern when it appeared before the CRTC in 2014 and in its submission that was removed from the record). This would include development funding, production funding, and multiple windows for achieving Cancon requirements. Assuming those services argue that any mandated Cancon contribution is discriminatory if they do not also receive the benefits accorded to established broadcasters or broadcast distributors, the TPP will effectively ban applying Cancon contributions to exempt entities. That might be a sensible policy for the moment, but the TPP removes the ability to revisit the issue and essentially freezes the Cancon system in its current form.

There are similar concerns with measures restricting access to online foreign audiovisual content. Given its popularity, few would want to restrict access to Netflix (indeed, the opposite is true as many want access to more Netflix). But what if foreign services have unfair advantages over Canadian-based competition? What if a foreign music service (with videos) targets the Canadian market in a manner that raises legal concerns? What if the government seeks to negotiate better opportunities for Canadian content on a foreign service?  The TPP would seem to block the ability to take action, since new rules may restrict access to foreign content or constitute the discriminatory requirements.

Why did Canada depart from longstanding cultural policy in the TPP?

I asked Global Affairs Canada for answers several times over the past week, but did not receive a response [Update 1/28: I received a response late yesterday. The government did not respond to questions about why the TPP departs from longstanding cultural trade policy. A spokesperson for the Minister of International Trade did confirm, however, that the TPP contains two exceptions to the cultural exception]. Perhaps the answer lies in U.S. opposition to Canada’s entry into the TPP negotiations. I’ve already highlighted several of the restrictive conditions faced by the Canadian delegation. But it is worth noting that the cultural exception was opposed by U.S. lobby groups, who warned that the TPP would not contain Canada’s traditional cultural exception:

IIPA is also concerned about the significant market access barriers to U.S. copyrighted materials that Canada maintains pursuant to the “cultural exception” in its FTA with the U.S. Canada has interpreted this exception to be unreasonably broad, even to encompass discriminatory application of its copyright law, and has insisted on this misinterpretation of the exception in similar provisions in other trade agreements. IIPA strongly opposes the inclusion of any such cultural exclusion in the TPP, and the Canadian government must understand that TPP will not admit of such exceptions.


Perhaps the carve out was another part of the price of admission. Or maybe the Conservative government was looking for a way to restrict the possibility of expanding Cancon payments or to block a Netflix tax forever.  Regardless, the TPP creates significant cultural concerns for those that support a cultural policy that includes mandated contributions to support the creation of Canadian content.

 Moreover, it represents a major departure from longstanding Canadian trade policy that sought a full exception to ensure full flexibility in implementing Canadian cultural policy.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules)

The post The Trouble with the TPP, Day 18: Failure to Protect Canadian Cultural Policy appeared first on Michael Geist.

The Trouble with the TPP, Day 17: Weak E-commerce Rules

Michael Geist Law RSS Feed - Tue, 2016/01/26 - 11:07

As part of the U.S. effort to drum up support for the TPP, President Barack Obama enlisted the support of eBay, sending an email to 600,000 merchants that claimed that the agreement would help e-commerce and small merchants. That message was repeated by Andrea Stairs, the managing director of eBay Canada, who wrote an op-ed in the Financial Post that similarly pointed to the e-commerce rules, de minimis customs rules, and the benefits for small and medium sized business. The Trouble with the TPP is that a closer look at the text reveals that the benefits from the e-commerce provisions, de minimis rules, and the much-touted SME chapter are practically non-existent.

Article 14.6 of the TPP addresses the issues of electronic authentication and electronic signatures, key aspects of ensuring that e-commerce transactions are enforceable. The foundational issue, as found in many e-commerce laws, is that electronic signatures have the same validity as paper-based ones. The TPP provides:

Except in circumstances otherwise provided for under its law, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form.

In other words, unless a country rules otherwise, electronic signatures are valid. By providing for the flexibility to determine otherwise, the TPP gives business with no additional certainty with respect to electronic signatures as it remains up to each country to develop its own rules. Additional provisions on electronic signatures contain similar limitations, while the electronic authentication issue is limited to “encouraging” the use of interoperable authentication systems.

The de minimis customs rules are of little help as well. The rules allow low-value shipments to proceed without further customs duties. The eBay Canada op-ed notes that the de mimimis threshold “remains a key barrier to Canadian consumer and small business participation in the global economy.” How does the TPP address the issue?  It states:

no customs duties will be assessed on express shipments valued at or below a fixed amount set under the Party’s law.

In other words, it doesn’t. The TPP leaves it up to each country to set the threshold and only requires periodic review.

The SME chapter is even weaker. It creates two obligations.  First, creating a website that contains the TPP text. Additional information, such as tax data, foreign investment regulations or business registration procedures are optional.  Second, the TPP countries agree to establish a Committee on SMEs that is required to meet once within one year of the TPP taking effect. That’s it. In fact, the chapter notes that non-compliance with these “obligations” are not subject to treaty dispute resolution procedures. These provisions do not meaningfully advance e-commerce. If anything, they serve as a reminder of how little the agreement does to better promote online transactions.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance)

The post The Trouble with the TPP, Day 17: Weak E-commerce Rules appeared first on Michael Geist.

The Trouble with the TPP, Day 16: Intervening in Internet Governance

Michael Geist Law RSS Feed - Mon, 2016/01/25 - 10:19

The Trouble with the TPP series explores Internet-related issues this week, starting with the surprising inclusion of Internet governance in a trade deal. The debate over Internet governance for much of the past decade has often come down to a battle between ICANN and the ITU (a UN body), which in turn is characterized as a choice between a private-sector led, bottoms-up, consensus model (ICANN) or a governmental-controlled approach. Canada (along with countries like the U.S. and Australia) have consistently sided with the ICANN-model, arguing for a multi-stakeholder approach with limited government intervention. In fact, at the 2014 NetMundial conference, the Canadian government stated:

The multistakeholder model of Internet governance has been a key driver in the success of the Internet to date. Canada firmly supports this model and believes it must continue to be the foundation for all discussions in order to preserve the Internet’s open architecture. Canada firmly supports strengthening this model. Government centric approaches would stifle the innovation and dynamism associated with the Internet.

The Trouble with the TPP is that it contradicts Canada’s longstanding policy on Internet governance. While Canada, the U.S. and other TPP countries urge the governments of the world to take a hands-off approach to the Internet, the TPP opens the door to country-code domain intervention (note that I am on the board of the Canadian Internet Registration Authority, which manages the dot-ca domain).

Article 18.28 on domain names requires each party to have a domain name dispute resolution system similar to the ICANN UDRP, to provide online public access to the WHOIS database that provides contact information for domain name registrants, and to have “appropriate remedies” for bad faith intent to profit from similar domains. According to earlier leaks, Canada joined most of the TPP in opposing the provision requiring remedies for bad faith intent to profit, perhaps recognizing the implications of mandated domain name regulation. The U.S. demand for a provision prevailed, however, creating trade rules that effectively require governments to regulate their national domains.

The current Canadian rules likely meet the the TPP requirements, but what if CIRA, acting as an independent manager of the dot-ca domain in consultation with its stakeholders, decided to amend its dispute resolution rules or to further restrict access to the WHOIS database? If the new CIRA rules were inconsistent with the TPP, the Canadian government would either face the prospect of violating the trade agreement or compelling CIRA to amend its rules. It is not clear how it would do that – perhaps a legislative act or an assertion of power over CIRA – but however achieved, it would require the government to directly intervene within the Canadian Internet governance model. That approach is what the government has long rejected, yet the TPP raises the possibility of abdicating those principles in order to meet the agreement’s obligations.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards)

The post The Trouble with the TPP, Day 16: Intervening in Internet Governance appeared first on Michael Geist.

Updating the Defend Trade Secrets Act?

Freedom to Tinker - Sat, 2016/01/23 - 14:02
Despite statements to the contrary by sponsors and supporters in April 2014, August 2015, and October 2015, backers of the Defend Trade Secrets Act (DTSA) now aver that “cyber espionage is not the primary focus” of the legislation. At last month’s Senate Judiciary Committee hearing, the DTSA was instead supported by two different primary reasons: […]

Fair Access: Striking the Right Balance on Education and Copyright

Michael Geist Law RSS Feed - Fri, 2016/01/22 - 10:37

Academic Matters, a semi-annual publication that explores issues related to higher education, has just published a pair of essays on education, fair dealing, copyright, and collective licensing. Roanie Levy, the Executive Director of Access Copyright, wrote an essay in support of the role of her copyright collective. I wrote the other essay, arguing that emerging forms of access for copyrighted works lessens the value of the Access Copyright licence.

The full piece – Fair Access: Striking the Right Balance on Education and Copyright – can be found here.  I conclude that:

any [copyright law] review must account for the millions being paid by educational institutions for access and the modest interpretations of fair dealing law in Canada, which have resulted in copying guidelines that are still more restrictive than those found in some other countries. Indeed, a fair review of the current system reveals that the problem facing Access Copyright is not that copies are not valued, but rather that in light of new forms of access and the evolution of the law, its licence is no longer valuable. 

The post Fair Access: Striking the Right Balance on Education and Copyright appeared first on Michael Geist.

The Trouble with the TPP, Day 15: Weak Anti-Spam Law Standards

Michael Geist Law RSS Feed - Fri, 2016/01/22 - 10:33

The Trouble with the TPP and privacy, which includes weak privacy laws, restrictions on data localization, bans on data transfer restrictions, and a failure to obtain privacy assurances from the U.S., also includes the agreement’s weak anti-spam standards. Given the fact that nearly all TPP countries have some form of anti-spam law (with the exception of Brunei), the inclusion of anti-spam provision in the TPP was not surprising, yet the agreement sets the bar far lower than that found in many countries. Article 14.14 states:

Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages;
(b) require the consent, as specified according to the laws and regulations of each Party, of recipients to receive commercial electronic messages; or
(c) otherwise provide for the minimisation of unsolicited commercial electronic messages.

The TPP provision features two key requirements: anti-spam laws that provide for a binding unsubscribe mechanism and some form of consent. Yet with the standard of consent left wide open, countries are free to adopt weak, ineffective standards and still comply with the TPP requirements. In fact, since spam raises global concerns that frequently requires cross-border co-operation, the TPP would have been an ideal mechanism to strengthen international anti-spam rules and enforcement.

For example, the Canadian anti-spam law establishes an opt-in requirement for consent to receive commercial electronic messages. The same is true in leading TPP countries such as Japan and Australia (and the European Union). Setting a higher bar for consent would have improved privacy and the effectiveness of anti-spam laws throughout the TPP member countries.

Similarly, Canada’s penalties for anti-spam violations were a direct result of Australian success with serious penalties for anti-spam violations. Despite the success, there are no prescribed penalties in the TPP, meaning that even cross-border anti-spam crackdowns within TPP countries may be undermined by inconsistent penalties and enforcement powers.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy)

The post The Trouble with the TPP, Day 15: Weak Anti-Spam Law Standards appeared first on Michael Geist.

Syndicate content