The Government of Canada announced on October 5, 2015, that it
successfully concluded negotiations on a free
trade agreement among the twelve members of the Trans-Pacific
While much of the focus of the TPP Agreement has been on the
issue of preferential access to Asia-Pacific markets and reductions
or elimination of tariffs on a wide range of products in various
sectors including agriculture, fisheries, forestry mining and
manufactured industrial goods, the TPP Agreement also addresses
several areas that will have an impact on the Communications, Media
and Sports (CMS) sectors.
The final text of the TPP Agreement was released by the New
Zealand government on November 5, 2015.
With respect to the Intellectual Property issues addressed in
the TPP Agreement, copyright term extension appears to have been
the most controversial. The United States sought to have all TPP
signatories ensure that the term of protection of a "work,
performance, or phonogram" be calculated as life of author
plus 70 years. This effectively requires Canada and other countries
to extend the current regime of life plus 50 (the current
international standard under the Berne Convention) by an additional
Before the final text was released, concerns had been raised
that the TPP Agreement would have required Canada to move to more
aggressive remedies for copyright infringement (see here, for example). This issue relates to the
role of Internet service providers (ISPs) in addressing online
copyright infringement. The Canadian Government's official
Backgrounder on the TPP Agreement states that the provisions on
copyright "reflects key aspects of Canada's [current]
regime including "notice-and-notice."" This appears
to be confirmed in the final text of the TPP Agreement.
The confusion arose in the general provisions of the
Intellectual Property Chapter, which contemplate a "safe
harbour" for ISPs when they adhere to a U.S.-style regime of
"notice and takedown," where complaints by rights holders
lead to the blocking or removal of allegedly infringing content
without the need for a court order. However, the final text of the
TPP Agreement makes clear that "notice and take down"
obligations would not apply to ISPs that are already subject to a
"notice-and-notice" regime, provided that the ISP takes
down the content upon becoming aware of a decision of a domestic
court that the content on the ISP's network infringes
copyright. Thus, in this regard, the TPP Agreement would
effectively preserve the current "notice-and-notice"
regime under the Canadian Copyright Act.
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