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The Trans-Pacific Partnership and Implications for Canadian Copyright Law

Negotiations on the Trans-Pacific Partnership (TPP) free trade agreement have concluded, and on November 5, 2015, the government of Canada published the official text of the agreement. The TPP, if ratified by Parliament, would require changes to Canadian intellectual property laws, including copyright law, as the TPP sets the minimum standards of copyright protection and enforcement mechanisms to be provided by each signatory to the agreement. In the area of copyright law, key changes that would be brought by the TPP include extending the term of copyright protection from 50 years to 70 years following the life of the author, imposing criminal sanctions for certain acts of copyright piracy, and providing for a “Notice-and-Takedown” regime.

Canadian copyright law currently recognizes the duration of copyright 377597422_gritsalak karalak_Girl_Japan anime cosplayto be the life of the author plus 50 years. However, the TPP, if ratified, would require Canada to extend the term of copyright protection to last the life of the author plus 70 years (or in the case of copyright held by a non-natural person, 70 years from the date of publication), which is presently the duration of copyright in many countries including the United States and members of the European Union.

The TPP would also require Canada to impose criminal penalties for wilful copyright piracy conducted “on a commercial scale”. According to the TPP, wilful copyright piracy on a commercial scale is not limited to acts carried out for commercial advantage or financial gain, but also applies to “significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace”. Canadian copyright legislation already provides for criminal liability for certain acts of copyright infringement, including acts of piracy for profit. However, there has been some concern expressed by members of the Canadian public that the new TPP provisions may have overly harsh consequences for an increased number of infringing activities, and would allow the authorities to criminally charge persons dressed in homemade cosplay costumes for copyright infringement, as one example.

While the TPP may broaden the scope of infringing acts which may attract criminal liability, the TPP does not purport to change the scope of what would constitute an act of copyright infringement. Under the current Copyright Act, the production of a homemade cosplay costume or fan art illustrating a character, without permission from the copyright owner of the character, could constitute an infringement of copyright. That said, a defence to infringement may be available under the Act’s “fair dealing” provisions, if it can be shown that the dealing was “fair” and that the dealing was for the purposes of research, private study, criticism, review, news reporting, parody, satire, or education. In addition, amendments to the Act introduced in 2012 have carved out certain protections for user-generated works which are used solely for non-commercial purposes.

In addition, the TPP provides for a “Notice-and-Takedown” regime, wherein an Internet Service Provider (ISP) would be required to forward to its subscribers any notices of alleged copyright infringement provided by a rights holder and immediately remove or disable access to the allegedly infringing content. This is in contrast to Canada’s current “Notice-and-Notice” regime, introduced earlier this year, wherein the ISP is only required to forward the notice and maintain a record of the subscriber’s activity for a certain period of time. Under the “Notice-and-Takedown” regime, ISPs who remove or disable access to allegedly infringing content would be exempted from liability for copyright infringement provided they make good faith attempts to notify the subscriber of the infringing activity. Given that Canada has a “Notice-and-Notice” regime in place, it may be exempted by the TPP from having to adopt a “Notice-and-Takedown” regime.

The TPP is now before the Canadian Parliament for ratification. Prime Minister Justin Trudeau has promised Parliamentary hearings on the agreement, so it remains to be seen when and how the standards provided in the TPP will be implemented.

by Amy Fong


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