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In his presentation to the Heritage Committee on Canada’s digital future Michael Geist revealed that he was sent a leaked copy of the Canadian / European Comprehensive Economic and Trade Agreement (CETA) intellectual property chapter from an anonymous source. According to Geist the contents of this agreement represent not only a significant threat to Canada’s sovereign approach to policy development but the most comprehensive change to Canadian intellectual property law seen to date.
This (CETA) will fundamentally reshape not just copyright but patents and trademark as well. In many ways what the Europeans are demanding are that Canada alter its and almost mirror intellectual property laws in all areas to match what the Europeans have done.
UPDATE:
Michael Geist has posted the updated copy of the Comprehensive Economic and Trade Agreement IP draft chapter and the contents are quite troubling. The document outlines a laundry list of demands from the EU, which according to Geist, represents nothing less than a complete overhaul of Canadian IP laws including copyright, trademark, databases, patent, geographic indications, and even plant variety rights. Given the broad scope of these demands and the contentious nature of foregoing sovereignty in the name of economics it will be very interesting to see how this agreement plays out.
Breakdown of demands via Michael Geist:
Copyright
The EU demands include:
- compliance with WIPO Internet treaties
- extension of the term of copyright to life of the author plus 70 years (Canadian law currently at life plus 50 years)
- additional copyright term extensions for audiovisual works, anonymous works, and unpublished works
- term of copyright for broadcasts for at least 50 years (Canada wants to limit to wireless broadcasts, while EU wants it to cover everything)
- greater transparency for copyright collectives
- new resale right for works of art
- new exclusive right of fixation for broadcasts (Canada wants to limit to wireless broadcasts, while EU wants it to cover everything)
- new exclusive right for broadcasters for retransmission in public places (ie. new fees for bars and other public places)
- new distribution right
- extension of the reproduction right to performers and broadcasters
- extension of the communications right for performers, phonogram producers, film producers, and broadcasters.
- anti-circumvention rules including provisions against devices that can be used to circumvent digital locks
- protection for rights management information
These are all EU demands. The only Canadian request is a yet to be specified provision on camcording.
Enforcement of IP Rights
The enforcement IP rights section contains quite literally, pages of European law that the EU wants incorporated into Canadian law. It addresses everything from ISP liability to injunctions to border measures to damages provisions. The EU even wants new criminal sanctions added, but has yet to specify what those should be. There are no Canadian requests here. Rather, the EU wants Canada to discard its approach to the enforcement of intellectual property almost completely and simply adopt the EU model.Trademarks
The EU demands include:
- Canada to comply with the Trademark Law Treaty (Canada wants only to comply with the Singapore Treaty on the Law of Trademarks and to make reasonable efforts to accede to Madrid Agreement on
- international registration)
- Canada to change its procedure for registration of trademarks
- Canada to provide protections for well-known trademarks
Geographic Indications
Canada and the EU propose competing approaches for extending protections for geographic indications. This applies to a wide range of products including agricultural products, wine, spirit drinks, and foodstuffs. The EU’s plan is far more extensive with provisions on protection, enforcement, rights of use, and scope of protection. In fact, the EU even wants to create a Joint Committee on geographic indications charged with monitoring the rules between Canada and the EU.Designs
The EU demands include:
- Canada to accede to the Hague Agreement Concerning the International Registration of Industrial Designs
- new protection for designs
- new rights for registration of designs
- term of protection for designs of at least five years
Patents
The EU demands include:
- Canada to comply with Articles 1 – 16 of the Patent Law Treaty (Canada wants to “endeavour to accede” to the treaty)
- further protection for medicinal or plant protection
- additional protection blocking disclosure of pharmaceutical data that is submitted to regulatory authorities to third parties
- new data protection for plant protection
Trade Secrets
Canada demands that the EU adopt the Canadian protection for trade secrets.
As if the pressure from US based lobby groups and trade organizations like the USTR and the MPAA wasn’t threatening enough to Canadian sovereignty, it now appears that the European Union has decided to throw its weight around in an effort to influence Canadian policy. Canada and the EU are in the midst of negotiating the Comprehensive Economic and Trade Agreement (CETA). The virtues of such Agreement are being bestowed by Industry Canada as:
Liberalizing trade in goods and services could bring a potential 20% boost to bilateral trade and GDP gains of up to $12 billion (or €8.2 billion) for Canada by 2014. A CETA with the EU could deliver commercial benefits across many goods sectors, including aerospace, chemicals, plastics, wood products, aluminum, fish and seafood, light vehicles and automotive parts, and agriculture products such as wheat, beef, and pork; it could also deliver benefits across services sectors such as transportation, engineering and computer services. The study also shows potential for enhancing the relationship in areas such as investment, labour mobility, regulatory cooperation, environment, and science and technology.
However, as the omnipresent Michael Geist and The Wire explain, the devil is in the details. While this new trade agreement may indeed be beneficial to boosting bilateral trade and providing all the economic advantages that come with it, it also provides a conduit to shaping and influencing Canada’s domestic IP polices. A recently leaked document outlines plans for increased political pressure against Canada and dismisses the 2009 consultations on copyright as a “tactic to confuse”.
Now a second document has leaked, though it is not currently available online. The Wire Report reports that an EU document dated November 16, 2009, features candid comments about Canada and the EU strategy. The document, called a “Barrier Hymn Sheet” leaves little doubt about the EU’s objective:
“Put pressure on Canada so that they take IPR issues seriously and remedy the many shortcomings of their IPR protection and enforcement regime…”
The document states that the trade negotiations are a “unique opportunity [for Canada] to upgrade its IPR regime despite local anti-IPR lobbying.” It includes an assessment of recent copyright reform efforts, noting that two bills have died due to “political instability.” The document adds that the copyright reform process was revived in 2009 with the national copyright consultation, but notes dismissively it may have been a “tactic to confuse.”
Tags: CETA, Comprehensive Economic and Trade Agreement, michael geist