October 3, 2018
By Max Rothschild and Catherine Lovrics
Late Sunday evening, Canada signed onto the new United States-Mexico-Canada Agreement (USMCA) that replaces the North American Free Trade Agreement. The USMCA includes a number of provisions that impose obligations on the member states relating to intellectual property and digital media.
The USMCA provides that the term of copyright protection shall be “not less than the life of the author and 70 years from the author’s death”. Under Canada’s existing Copyright Act, the general term of copyright protection for works extends for 50 years from the end of the year that the last living author dies. As part of the transition period, Canada has up to 2.5 years from the date that USMCA enters into force to amend the Copyright Act to reflect the extended copyright term. Other provisions of the USMCA suggest that it could enter into force no earlier than Spring 2019, and more likely not until the second half of 2019, which would give Canada until late 2021 or early 2022 to amend the Copyright Act to extend the general copyright term.
The signing of USMCA also coincides with the Canadian Federal government’s ongoing review of the Copyright Act and intellectual property (IP) more broadly as part of its National IP Strategy. Whether or not to extend the term of copyright protection to align with other trading partners has been a contentious issue in Canada, and one already raised during the ongoing Copyright Act review.
Additionally, Canada is not obligated to amend its notice-and-notice regime in response to the USMCA. The trade agreement provides that member states must implement certain legal incentives and limitations for ISPs to ensure they are free from liability for the storage and transmission of copyright infringing content. Generally, ISPs are to be required to remove or disable access to such infringing data/files upon receipt of notice from a copyright owner. However, the USMCA includes an exception to the requirement to implement such a “notice-and-takedown”-style system if a member state meets certain legislative requirements. It appears that Canada’s existing Copyright Act fulfils the USMCA requirements.
Canada’s notice-and-notice system only requires ISPs to notify their customers of an infringement allegation by a copyright owner, there is no obligation for an ISP to remove or disable access to content that a copyright owner claims is infringing. During the ongoing review of the Copyright Act, several stakeholders have also raised concerns related to Canada’s current notice-and-notice system, including its perceived inadequacy in at least in some quarters, at effectively redressing online copyright infringement. Given the provisions of the USMCA, as well as the recent comments of the Supreme Court of Canada on ISPs’ obligations under the existing notice-and-notice system, it will be interesting to see what changes, if any, the Canadian Federal government makes to the system as part of the National IP Strategy.
There is much to unpack from the unveiling of the USMCA. We will provide further updates as we reflect on the provisions, and as any additional information becomes publicly available.
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