If leaked details from the Trans-Pacific Partnership prove to be accurate, there’s a chance that a Canadian haven for Jose Bautista’s bat flip could be living on borrowed time.Chris Young/The Canadian Press
By now, millions of Canadians have seen Toronto Blue Jays slugger Jose Bautista's incredible Internet-breaking bat flip, either because they watched it live or because they've watched the highlight loop as an animated GIF. It's become a cultural touchstone for playoff-starved Canadian baseball fans, and remixes of the image have become a mini-meme phenomenon as they spread across the Internet.
But what if Canada's latest piece of sports folklore disappeared from the Internet tomorrow? It's not far-fetched. One feature of our digital era is an increasingly tense fight between the owners of copyrighted works (videos, pictures, music, etc.) and the public who have fair use or fair dealing rights to modify, use or transform those works. Canadians might expect that the 2011 Copyright Modernization Act would govern their exercise of those rights, but they may be in for a shock when the final text of the Trans-Pacific Partnership is made public. Leaked documents, purportedly of the trade pact and released by WikiLeaks on Oct. 9, suggest the massive trade agreement tilts the balance of power away from the public and imports some of the harshest features of U.S. law.
Just last week, several sports leagues – including the National Football League, the Ultimate Fighting Championship and the National Collegiate Athletic Association and its biggest conferences – declared copyright war on the animated GIF.
Using the takedown passages of the U.S. Digital Millennium Copyright Act (DMCA), the NFL persuaded Twitter to suspend accounts operated by two online media companies (Gawker Media's Deadspin and Vox Media's SB Nation) because they were posting animated GIFs of football plays. It kicked up a U.S. media firestorm amid protests and arguments over exactly how much an endlessly repeating clip of a video "transforms" an original copyrighted work.
Such free-for-alls involving potentially abusive DMCA takedowns (which require Internet service providers to remove content when they get a lawyer's request, without adjudication by any court) are increasingly common in the United States. Canadian copyright law is less draconian – we have a "notice and notice" regime that merely mandates ISPs pass on the notice of infringement. Canadians using such U.S.-based services as YouTube, Twitter or Tumblr may run afoul of the DMCA, but a Canadian sports site such as the Score (or a regular citizen with their own website) could post the Bautista flip with little fear it would be claimed and removed through a legal notice by the MLB.
But if leaked details from the TPP prove to be accurate, there's a chance that a Canadian haven for Joey Bats's epic posthomer flip could be living on borrowed time. Ottawa law professor Michael Geist is one of Canada's leading experts on copyright in the digital age, and he warns the TPP creates a "backdoor takedown system" for Canada.
Allegedly leaked versions of the final agreement suggest the treaty would create a takedown regime that could override Canadian rules against such practices. As yet, the government has refused to comment on any of these leaked documents.
Mr. Geist describes this as a bit of a legal catch-22. Because Canada does not have takedown provisions, other member countries can use the TPP's takedown rules against Canadian operators or citizens. In those cases, the rules of the home country would apply, so Canada's test for what is a fair dealing use of a copyrighted work essentially would be ignored. And, there is no "put back" provision for incorrect claims in the TPP, unlike in the DMCA.
Under the U.S. rules, copyright holders have been very aggressive in claiming copyright violations where none may have occurred. Sports leagues have been at the forefront of that effort to claim even transformative works without a clear court ruling.
"They can assert that, but my view would be, uh-uh, we don't have a written agreement and there are limitations to some of your rights," said Mr. Geist, who agrees the recently targeted sports GIFs would be safe under Canadian copyright.
"I think you can make a compelling case that a lot of these things are news reporting, sometimes it's criticism or review depending on the circumstance. In Canada, we're pretty well protected when it comes to the flexibility that users or that companies have to build upon or remix or rework the work of others, especially if they do it for non-commercial purposes, but even some commercial situations, too.
"What you have in a sense really is a sidelining of Canadian law … because something that may be perfectly legal in Canada and even being hosted in Canada, still might come down based on this new TPP requirement."
The worry is that there's very little concerned Canadians can do at this stage, as the final text has not been made public. "I think we need to have a better understanding of exactly what they've done when it comes to the Internet. Because on first read of the leaked document, it looks like a mess," Mr. Geist said.
So when it comes to the fate of future Bautista bat flips, the devil will be in the details.
Shane Dingman