New Trans-Pacific Partnership Leak Means ‘Significant Overhaul’ for Canadian Law

A full draft of the copyright chapter of the massive Trans-Pacific Partnership trade deal, leaked on Wednesday morning, suggests that Canada will have to significantly change its laws to stay in line with the treaty's wide-ranging rules on everything from internet piracy to copyright terms.

The chapter, dated from May 11, 2015, was previously leaked to journalists but not to the public, and was only released in full today by Knowledge Economy International, a public policy non-profit. The draft shows that there is still significant disagreement on certain issues between the 12 participating countries, which together make up 40 percent of the world's GDP. Even so, the TPP could still result in significant changes for Canadian law.

The draft shows that 10 countries unequivocally support mandatory criminal penalties for altering or removing "rights management information" (RMI) like a digital watermark, or the name of a song and the artist who recorded it. For example, songs purchased through Apple's iTunes music store—which restricts playback to a handful of computers—includes an RMI file in every song; under new TPP rules, removing this file would be criminalized.

Canada is the only country to oppose this change. According to University of Ottawa internet law professor Michael Geist, this provision, if adopted, would require Canada to amend its Copyright Act, which was just revamped in 2012.

"Based on the leak that we've seen, the TPP would result in a significant overhaul of Canadian copyright law," Geist said. "It would create new reforms to digital locks provisions, particularly relating to rights management information, that would result in new criminal penalties that don't exist in copyright law today."

While the 2012 update to the Copyright Act was arrived at after nearly a decade of hearings and public debate, the new crimes and punishments laid out in the TPP are being hammered out in highly secretive negotiations.

In the US, takedown notices under the Digital Millennium Copyright Act operate under a rather automatic "notice-and-takedown" approach, which often results in false claims being acted upon. In Canada, however, things are a little more chill: everybody involved gets a good old fashioned bureaucratic notice before anything happens, and the internet service provider involved has no obligation to remove the infringing content themselves. That's up to the courts.

The TPP seeks to make US-style copyright takedowns the global norm, although the leaked draft contains a special caveat for Canada. But it comes at a cost: internet service providers must "remove or disable access" to infringing material after a court deems it to be so. This could mean that the TPP will mandate the ability to block access to websites.

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'We don't have website blocking provisions under Canadian copyright law," Geist said. He added, "The TPP is dictating what the changes are. There is really no public debate or discussion. Behind closed doors and in secret, Canada will have already agreed to make these changes."

The leaked chapter also shows that there is still significant disagreement between countries. It's long been known that the US has been leading a push to extend copyright terms, for example, although the proposed term length itself—life plus 70 years—is still in brackets in the leaked draft. Meanwhile, a section that allows for compensation to be awarded to victims of copyright abuse—a shady takedown notice, for example—has a single, but powerful, dissenter: the US.

if the latest TPP leak is any indication, some important changes to our laws might actually be decided behind closed doors, away from the eyes of the public—changes that could mean inventing criminal acts where they didn't exist before, and forcing internet companies to block your access to the web.