Another round of TPP negotiations on intellectual property is underway this week in Chile, and two additional countries are looking to get in on the action: Mexico and Canada. However, both countries may have trouble getting their citizenry to agree to the IP provisions if they remain in their current form. To determine how much each country would have to change its laws to comply with TPP requirements, PIJIP asked me to compare the TPP’s leaked IP chapter with the existing law in each country, as well as the countries’ obligations under NAFTA.
Unsurprisingly, the TPP provides far more stringent limitations than NAFTA, and would require major legal changes by both countries.
Canada is currently in the final stages of updating its Copyright Act with Bill C-11, a process it has been working on since 2005. Many of the changes in that legislation have been contentious, and neither consumer groups nor rightholders are satisfied with the current form, but it seems that the current compromise is likely to finally pass. The TPP provisions would require Parliament to start the process over again, as many of them conflict with existing law or C-11’s provisions.
Mexico, meanwhile, is already facing a schism over ACTA between its executive branch, which wants to sign, and its legislative branch, which has voted to reject ACTA. With the TPP imposing even more onerous IP provisions than ACTA, and public opposition growing in a similar manner, it is difficult to imagine the TPP not facing similar difficulties.
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- Currently, Canada’s term of copyright meets the international standard of life of the author plus 50 years. TPP would require Canada to expand it to life of the author plus 70 years.
- Currently, Canada’s term of copyright for sound recordings is 50 years from the first fixation of the recording. TPP would expand this to 95 years in most cases, almost doubling the term.
- Currently, Canada’s Copyright Act criminalizes certain types of copyright infringement for profit. TPP would expand this to cases without any direct or indirect motive of financial gain, as well as cases of aiding and abetting, which could be applied to internet service providers.
- Canada’s Bill C-11 contains restrictive provisions on technological protection measures, but it includes a mechanism to identify new exceptions. (C-11 § 41.21(2)). TPP would increase penalties for circumvention and prevent new exceptions.
- C-11 distinguishes between commercial and non-commercial infringement. TPP requirements apply to both.
- C-11 forbids removal or alteration of rights management information, but TPP would require criminal penalties for such removal or alteration in addition to civil penalties, and expressly limits any exceptions to those for law enforcement purposes.
- C-11 requires a service provider to retain records of individuals against whom they have received notice of infringement. TPP would require judicial procedures for such identifying information to be turned over to copyright holders “expeditiously” upon “effective notification of claimed infringement.” This could require disclosure of personal information without any safeguards for privacy.
- C-11 creates a notice-and-notice system for online infringement. TPP would require a notice-and-takedown system very similar to the American DMCA.
- The TPP would create a new requirement allowing copyright owners to block parallel trade of copyrighted works, preventing the importation of a copyrighted work into a country where the work is unavailable at the same price.
- The TPP’s patent provisions would extend patent terms and damages.
- http://m.theglobeandmail.com/news/politics/john-ibbitson/trans-pacific-trade-deal-at-what-price/article2327426/?service=mobile (“One senior official, speaking on background, suggested that Canada’s signature on a TPP treaty would amount to a whole new free trade agreement between Canada and the U.S., stripping away all of the protections the Mulroney government secured in the original talks, with all the other members of the TPP having access as well.”)
- Currently, Mexico’s term of copyright for sound recordings and performances is generally 75 years from the first fixation of the recording or the first performance/recording of the performance, respectively. TPP would expand this to 95 years in most cases.
- Currently, Mexico’s term of copyright for books, video recordings and broadcasts is 50 years from first publication of the book, the first fixation of the recording, or the first broadcast. TPP would expand this to 95 years in most cases.
- Currently, Mexico’s copyright law sets damages for infringement at 40 percent or more of the public sale price of the original product in civil courts. TPP would require damages “in an amount sufficiently high to constitute a deterrent to future infringements and to compensate fully the right holder for the harm caused by the infringement.”
- Currently, Mexico requires a profit motive for criminal infringement. TPP expands criminal infringement to include “significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain.”
- Currently, Mexico does not have any notice procedures for infringing material on the internet. TPP would require a notice-and-takedown system very similar to the American DMCA.
- Currently, Mexico does not impose criminal penalties for recording films in theaters without proof of distribution; TPP would require such penalties, even though the Mexican Senate rejected such a bill in 2011.
- Currently, Mexico does not grant ex officio authority to customs experts. The TPP would require such authority be granted “with respect to imported, exported, or in-transit merchandise,23 or merchandise in free trade zones, that is suspected of being counterfeit or confusingly similar trademark goods, or pirated copyright goods.”
- Currently, Mexico does not criminalize the circumvention of technological protection measures. TPP would require such circumvention to be criminalized, impose high fines, and strictly limit the possible exceptions to this law.
- Currently, Mexico criminalizes the manufacture of TPM circumvention devices. TPP would also require criminalization of the importation, distribution, or sale of such devices.
- http://www.iipa.com/pdf/2012_Jan13_Mexico_TPP_Submission.PDF (identifying many TPP provisions the IIPA would like to see enacted in Mexico)
- NAFTA requires the term of copyright, when not calculated by the life of the author, to be at least 50 years from the first publication. TPP would expand this to 95 years in most cases, almost doubling the term.
- NAFTA makes it a civil offense “to receive, in connection with commercial activities, or further distribute, an encrypted program carrying satellite signal that has been decoded without the authorization of the lawful distributor of the signal . . . .” TPP makes this a criminal offense, whether for commercial or private use.
- NAFTA allows parties to make it a requirement that a sign be visual perceptible for a trademark to be registered. TPP forbids this.
- Under NAFTA, “a trademark consists of any sign, or any combination of signs, capable of distinguishing the goods or services of one person from those of another, including personal names, designs, letters, numerals, colors, figurative elements, or the shape of goods or of their packaging.” TPP adds sounds, scents, and geographical indications.
- TPP requires an electronic trademark registration system and public electronic database of trademarks.
- TPP expands the required patent protection to include new forms, uses, or methods of a known product, “even if such invention does not result in the enhancement of the known efficacy of that product.”
- NAFTA allows parties to exclude plants (other than plant varieties) and animals and diagnostic, therapeutic, and surgical methods for the treatment of humans or animals from patentability. TPP expressly requires these to be patentable.
- NAFTA grandfathers in conflicting geographical indicators that had existed for ten years or were used in good faith at the time of signing. TPP would require cancelation of such marks.
- NAFTA exempts seized counterfeit goods from destruction when such destruction would violate constitutional requirements. TPP has no such protection.
- NAFTA only allows criminal penalties for infringement “committed wilfully and on a commercial scale,” but does not define these terms. TPP defines “commercial scale” as including any “significant” infringement regardless of financial motivation and any willful infringement for the receipt of anything of value.