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Like Ernest Hemingway? Help Preserve Canada's Public Domain

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Canada celebrated New Year's Day this year by welcoming the likes of Ernest Hemingway and Carl Jung into the public domain just as European countries were celebrating the arrival of James Joyce and Virginia Woolf, 20 years after both entered the Canadian public domain.

Canada's term of copyright meets the international standard of life of the author plus 50 years, which has now become a competitive advantage when compared to the United States, Australia, and Europe, which have copyright terms that extend an additional 20 years (without any evidence of additional public benefits).

In an interesting coincidence, the Canadian government filed notice of a public consultation on December 31, 2011 on the possible Canadian entry into the Trans-Pacific Partnership (TPP) negotiations, trade talks that could result in an extension in the term of copyright that would mean nothing new would enter the Canadian public domain until 2032 or beyond.

The TPP covers a wide range of issues, but its intellectual property rules as contemplated by leaked U.S. drafts would extend the term of copyright, require even stricter digital lock rules, restrict trade in parallel imports, and increase various infringement penalties. As I noted last month, if Canada were to ratify the TPP, it would require another copyright bill to undo much of what the government is about to enact with Bill C-11.

A recent study on the implications of the copyright provisions point to many concerns including:

-extend the current term of copyright protection from the current Canadian law of life of the author plus an additional 50 years to life plus 70 years. The additional 20 years goes beyond international law requirements and has been widely criticized by many groups.
-new digital lock rules that would increase penalties for circumvention and restrict the ability to create new digital lock exceptions. While Bill C-11 is far more restrictive than necessary to comply with the WIPO Internet treaties, it does include a mechanism to identify new exceptions.
-new statutory damages provisions that could require the government to reverse the changes found in Bill C-11 that distinguish between commercial and non-commercial infringement.
-new rights management information rules that would lower the standard for violation and extend the scope of prohibited activities.
-new enforcement requirements that may require the disclosure of personal information without any privacy safeguards
-new copyright criminalization requirements even in cases that "have no direct or indirect motivation of financial gain." The criminal provision also cover "aiding and abetting," which may be applied to Internet providers.
-new ISP liability provisions that would require a notice-and-takedown system contrary to the approach established under Bill C-11
-a new requirement to provide copyright owners with an exclusive right to block "parallel trade" of copyrighted works. This would stop the importation of a copyrighted work from one country where the good is voluntarily placed on the market to another country where the same good at the same price is unavailable. The Supreme Court of Canada looked specifically at these issues several years ago and rejected attempts to use copyright to stop such activities.

The concerns with the TPP do not stop with copyright. Proposed patent rules would alter the scope of what is patentable under Canadian law, extend patent terms, and create triple damage awards for patent infringements.

Canada has not participated in the negotiations, but is now considering doing so. The government consultation on the possible participation states:

The Government is embarking on a public consultation process to allow all interested stakeholders an early opportunity to provide comments, input and advice on possible free trade negotiations with TPP countries (current nine members and other interested countries: Japan and Mexico). It is essential that the Government of Canada be fully aware of the interests and potential sensitivities of Canadians with respect to this initiative. We welcome advice and views on any priorities, objectives and concerns relating to possible free trade negotiations with TPP countries.

Among the specific issues it mentions are the intellectual property provisions.

Now is the opportunity to help preserve the public domain in Canada by speaking out against TPP copyright provisions that would extend the term of copyright or impose even stricter digital lock rules. The consultation is open until February 14, 2012. All it takes a single email with your name, address, and comments on the issue. The email can be sent to consultations@ international.gc.ca.

Alternatively, submissions can be sent by fax (613-944-3489) or mail (Trade Negotiations Consultations (TPP), Foreign Affairs and International Trade Canada, Trade Policy and Negotiations Division II (TPW), Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario K1A 0G2).

The TPP would require a massive overhaul of Canadian intellectual property law, far beyond that envisioned by either Bill C-11 or even the Anti-Counterfeiting Trade Agreement (ACTA). The impact on the public domain would be incredibly damaging, effectively blocking the entry of new works for the next two decades. Canadians should speak out now to ensure that the government does not cave on copyright term extension.

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