The cp is a BINDING assessment required for the plan --- it ensures protection of the public domain and spills-over to future protections

(Graham J. Reynolds University of British Columbia (UBC), Associate Professor, Faculty of Law, “The Precautionary Principle and its Application in the Intellectual Property Context: Towards a Public Domain Impact Assessment,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347922 //pa-ef)

Fourth, and the subject of this chapter, another situation in which the precautionary principle could be usefully applied is at the point at which proposals for intellectual property reform are introduced. The application of the precautionary principle in the context of intellectual property reform could require legislative bodies, when evaluating proposed amendments to their intellectual property legislation or new intellectual property legislation, to explicitly consider the impact of any such proposals on the public domain. In the following section, I will consider one possible instantiation of the precautionary principle in the context of intellectual property reform, namely in the form of a PDIA. 3) Applying the Precautionary Principle in the Context of Intellectual Property Reform: Towards a Public Domain Impact Assessment In considering how the precautionary principle might be applied in the context of intellectual property reform, it is informative to look to existing works that have advocated for an approach to intellectual property reform that could be characterized as “precautionary.” One commentator, Thomas F Cotter, has explicitly suggested the application of the precautionary principle in the context of copyright, stating that “policymakers would be wise to incorporate something analogous to the Precautionary Principle, in order to minimize the risk that aggressive copyright laws will decimate the cultural environment.”46 Cotter proposes several ways in which the application of the precautionary principle could impact intellectual property reform. First, he suggests that the principle could “shift the burden of justifying a proposed, but potentially harmful, rule to the affected industry.”47 Cotter states that the burden of proof could vary depending on factors such as the “magnitude of the potential harm, its irreversibility, and the current state of scientific understanding of its probability.”48 Second, Cotter suggests that “advocates of further copyright expansion” could be required to demonstrate, through “some meaningful degree of proof that further expansions are necessary to maintain incentives, and are likely to do no harm to the other relevant goals of copyright.”49 Modifying the intellectual property reform process in such a manner as to require evidence demonstrating the probability and seriousness of harm that may result to the public domain from the adoption of proposed reforms, and demonstrating the consistency of proposed reforms with the goals of intellectual property laws, could be of significant benefit to the public domain. It is unclear, however, how the burden shift suggested by Cotter might function should multiple industries propose the same reform or should reform be proposed by parties other than industry. As well, questions could be raised as to whether it is in the public interest to permit the industry proposing legislative reform to act as the party providing evidence justifying this same reform. Cotter, acknowledging the potential for abuse inherent in such an approach, notes that “affirmative findings [could be required] from the Copyright Office or from Congress.”50 Building on Cotter’s approach, I will conclude this chapter by proposing another possible instantiation of the precautionary principle in the context of intellectual property reform. Specifically, I will propose the creation of a PDIA. I envision the PDIA as a process through which proposals for intellectual property reform, prior to their enactment, are evaluated by an independent review panel in order to determine their potential impact on the public domain. Given the space constraints of this edited text, I will not describe the PDIA in exhaustive detail. Instead, I will introduce the framework of the PDIA, leaving the specific details to be expanded upon in a future work. My proposed PDIA is modeled on the Canadian Environmental Assessment Act (CEAA).51 The CEAA can be seen as an instantiation of the precautionary principle in the context of Canadian environmental law. As in the case of intellectual property, in which private rights are balanced with the public interest, the CEAA attempts to achieve a balance between economic development and environmental concerns. I envision the PDIA process as an open, public process, conducted by an independent review panel. Individuals, groups, and industry could have the opportunity to submit documents and provide oral testimony to the review panel with respect to the impact of certain legislative proposals on the public domain. Documents and testimony under consideration by the panel could then be published online, giving the public the opportunity to examine and comment on the submissions, the evidence contained in the submissions, and the methodology employed by parties that have submitted evidence.52 Structuring the process in such a manner, as opposed to relying on the party desiring a specific reform to provide evidence justifying that reform, reduces the risk that the party desiring the specific legislative reform might, as Cotter states, make “rosy predictions” or engage in “sleight-of-hand.”53 As is the case in the procedure set out under the CEAA, a number of mandatory factors could be considered under the PDIA process, including:54 - The projected impact of the proposed legislative reform on the public domain, including the cumulative effects on the public domain that are likely to result from the proposed reform in combination with existing legislation or other reforms that have been or will be undertaken. - The significance of this impact. - Comments from the public received during the course of the PDIA process. - Measures that might mitigate any adverse impacts of the proposed legislative reform on the public domain.5 Evidence demonstrating that the proposed reform will (or will likely) achieve the desired result.56 - The impact that the proposed reform might have on groups.57 While the factors noted above may already have been considered by bureaucrats and politicians in the legislative drafting process,58 several advantages flow from formalizing their consideration in a public manner through a PDIA. First, formalizing these factors and mandating their review through a PDIA would ensure that each factor is explicitly considered. Second, formalizing these factors and mandating their review through a PDIA would increase openness and transparency within the legislative process, ensuring that the factors are not simply analyzed by bureaucrats and politicians, but that they are seen, by the general public, to have been analyzed. Third, formalizing these factors and mandating their review through a PDIA would create a record of evidence that could be helpful for courts and others seeking to interpret the legislation. This record could also be relied on in future years in seeking to further reform, develop and shape intellectual property legislation and policy. The consequences of determining, through the PDIA process, that proposed legislative reforms might negatively impact the public domain could vary. One possible approach could be for legislative bodies to bind themselves to the determination arrived at through the PDIA process.59 This approach would represent the strongest instantiation of the precautionary principle of the options outlined in this chapter. Under this approach, if the PDIA process concludes that proposed intellectual property reforms might negatively impact the public domain beyond a certain threshold (for instance, might have a “severe impact” on the public domain), the legislative body would not be permitted to pass the legislation as proposed.