Why the TPP will harm Canada’s public domain, limit its ability to regulate IP

Maud Rozee (1L)

The Trans-Pacific Partnership (TPP) is a big deal, literally. The version recently released to the public is approximately 6,000 pages long. According to U of T Law’s Innovation Chair in Electronic Commerce, Associate Professor Ariel Katz, its provisions would have a significant impact on Canadian intellectual property (IP) law.

Professor Katz—who has a quote taped to his door calling him an “anti-copyright ideologue with the long-term vision of a mole”—is strongly opposed to the TPP’s IP provisions. In a recent op-ed for the Toronto Star, he argued that the TPP’s IP provisions may unconstitutionally limit our freedom of expression. Although he acknowledges that copyright and the TPP have their benefits, he contends that increasing copyright protection would “not [be] something [the government] could easily justify.”

The TPP would extend the term of copyright protection in Canada from the author’s life plus 50 years to the author’s life plus 70 years. Katz argues that this term extension would rob Canadians of their cultural heritage by keeping works which would have otherwise entered the public domain under copyright. According to studies by American and European scholars, copyright terms create a “black hole” in the availability of works to scholars and the public.

Books from the 1880s outnumber books from the 1980s in availability on Amazon. Some digital archives contain more cultural works from before 1940 than from the following 60 years. If Canada extends its copyright term, this IP black hole will grow. Katz also noted that strict copyright laws can be used as tools of censorship. For example, courts are more likely to grant injunctions to remove information for a copyright action than for a defamation action.

Others have claimed that the TPP’s changes to Canada’s IP laws are not cause for concern. Nathaniel Lipkus, an IP lawyer at Osler, recently wrote in the Globe and Mail that the changes from the TPP could help Canadian innovators compete internationally. He argued that since Canadian entrepreneurs are competing with businesses in Silicon Valley, matching Canadian IP regulations to their American counterparts would level the playing field.

Even if the TPP’s IP provisions were inconsequential, Professor Katz says that signing the TPP would still be “a big and very bad deal.” If Canada signs the TPP, changing regulations contained in it would require a difficult re-negotiation process involving all the signatories. “We have no reason to assume that what we think is optimal today is going to remain optimal,” Katz stated. “These agreements narrow and constrain our policy space.”

In addition to its substantive provisions, the TPP reaffirms Canada’s IP commitments under previous international treaties. Instead of merely repeating the commitments, however, the TPP restates them using slightly different language. Katz argued that the new language could make it easier for the United States Trade Representative—the department that monitors the United States’ trade partners’ adherence to their agreements—to find Canada in violation of its IP treaty obligations.

Commentators have also voiced concerns about the new investor-state dispute settlement (ISDS) arbitration mechanism, which would allow foreign companies to recover lost profits from the Canadian government for regulations or decisions which harm the company’s investments. Professor Katz points out that companies already have this ability under the North American Free Trade Agreement (NAFTA), but that the TPP would allow companies to recover for new kinds of losses—e.g. NAFTA does not explicitly mention intellectual property investments. This ability is not symmetrical, Katz says: “When courts find in [a company’s] favour, nobody can bring a claim saying ‘you expropriated the right of the public.’ […] There is no countermeasure, it only goes in one direction.’”

The TPP’s IP provisions may just be the cost of doing business with Canada’s trade partners, but Professor Katz worries that they are part of a harmful trend. “Historically, it’s almost universally a uni-directional ratchet—more protection, for a longer time, for more subject matter. […] In order to innovate, you need access to knowledge. The more restrictions you have on existing knowledge, the more you narrow the space in which you can innovate.”

Katz thinks that Canada’s copyright term of the author’s life plus 50 years, the minimum allowable term under Canada’s current treaty obligations, is “already too long.” Adding the TPP’s stricter, almost-unchangeable, IP provisions on top would “make things even worse.”