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What’s the Deal? Demand Transparency for the TPP

Canada has officially joined the Trans-Pacific Partnership negotiations, and has done so as a second-tier partner, meaning that we have had to accept, sight-unseen, the provisions that have already been negotiated. As Ottawa law professor Michael Geist put it in an interview with the Vancouver Sun, “just by entering into discussions we have effectively agreed to a number of conditions the government hasn’t even told us about”. A while back, when we were raising awareness about the potential impact of the TPP on copyright legislation in Canada, we highlighted a great article from that breaks down how exactly our long-fought-over copyright bill C-11 would be changed by our agreement to the treaty, according to a leaked TPP document.

While it’s possible that these provisions may have changed (we don’t know as the details are secret), now that Canada is officially part of the negotiations, this is worth taking another hard look at.

Copyright Exceptions

The negative direction that international copyright norms have taken is made clear when we look at the original purpose of copyright: to encourage innovation by ensuring that a creator can profit from their creation. After a period of time, during which the creator can reap the benefits of their work, their ‘property’ moves into the public domain, where it can be freely used and enjoyed. In addition, in certain circumstances (again for the public good) exceptions can be made to this monopoly on a creation—for example creating Braille copies of written works for blind users.

Susan Chalmers at Infojustice notes, “given that the rights granted under copyright law have become incredibly strong (e.g. the copyright term has gone from 14 years to lasting successive lifetimes), their exceptions should be reinforced in order to maintain the “balance” in copyright law that everyone talks about when they talk about copyright.

In the U.S. ‘fair use’ has provided exceptions that allow for search engines to function—the temporary copying of webpages carried out by Google’s webcrawling and caching activities, for example, was ruled to be just such a valid exception.

Pushing for good copyright exceptions in the TPP is therefore important for preserving an Internet that works for the public good. New Zealand is one of the negotiating countries that has proposed wording that will allow for flexibility in determining these exceptions, while the U.S. has pushed for the most restrictive wording. As Infojustice points out, “[t]he way the trade winds blow for exceptions will actually shape the way you interact with information online”.

Check out New Zealand website A Fair Deal for information on these rules.

Freedom of Expression and Creative Culture

Jesse Brown at Macleans has highlighted some of the main concerns that the Internet freedom community has raised regarding the copyright provisions of the TPP:

  • That copyright owners could demand your private information from your service provider and fine you for alleged infringement.
  • That your domain or computer could be seized if it’s linked to an infringement, and you could go to jail.
  • That a ‘three strikes’ system could be imposed wherein three accusations of copyright infringement would result in the termination of your Internet access, and even criminal penalties.

Aside from the obvious negative implications here, this could result in a situation where people are afraid to create, share, and remix, and avoid doing so for fear of being penalized. This would result in a loss of culture, creativity, and free expression, and would fundamentally change the way we use the Internet.


One of the other major problems with the TPP is that it has been shrouded in secrecy from the beginning, and most of the information we’ve got has come from leaked documents. Now that Canada has joined the negotiations, the office of the United States Trade Representative has stated that it will have access to the texts and will participate in all activities leading up the to next round of negotiations in December.

However that doesn’t mean the general public will get to see these documents. As Peter Clark at Ipolitics has pointed out, the negotiating texts state that the details of the deal will be declassified “[f]our years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations”. The idea that we don’t get to hear what we have signed up for until four years after the deal is made, is absurd.

There is scope for greater openness and input; Clark notes that the U.S. held consultations with stakeholders, but sees little likelihood of stakeholders in Canada being allowed to discuss the details of the TPP with Parliamentary Committees.

Now that Canadian negotiators have access to the TPP documents, we need to push for greater openness, and for consultations with a range of stakeholders to ensure that we don’t give up a free, open Internet.

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