[Infowarrior] - Beyond ACTA: Proposed EU - Canada Trade Agreement

[Richard Forno]

Beyond ACTA: Proposed EU - Canada Trade Agreement Intellectual  
Property Chapter Leaks

Wednesday December 16, 2009

http://www.michaelgeist.ca/content/view/4627/125/

Canada's participation in the Anti-Counterfeiting Trade Agreement  
negotiations has understandably generated enormous public concern as  
leaked documents indicate that ACTA would have a dramatic impact on  
Canadian copyright law.  The U.S. has proposed provisions that would  
mandate a DMCA-style implementation for the WIPO Internet treaties and  
encourage the adoption of a three-strikes and you're out system to cut  
off access where there are repeated allegations of infringement.

Yet it would appear that ACTA is actually only part of the story.   
Canada is also currently negotiating a Comprehensive Economic and  
Trade Agreement with the European Union.  The negotiations have been  
largely off the radar screen (and similarly secretive) with the first  
round of talks concluding in October in Ottawa. Intellectual property  
figures prominently in the agreement.  In fact, the EU proposal for  
the IP chapter has just leaked online and the document is incredibly  
troubling.  When combined with ACTA, the two agreements would render  
Canadian copyright law virtually unrecognizable as Canada would be  
required to undertake a significant rewrite of its law.  The notion of  
a "made-in-Canada" approach - already under threat from ACTA - would  
be lost entirely, replaced by a made-in-Washington-and-Brussels law.

What are some of the EU's demands?

	• Copyright term extension.  The current term of copyright law in  
Canada is life of the author plus 50 years.  This is consistent with  
the term requirements under the Berne Convention.  The EU is demanding  
that Canada add an additional 20 years by making the term life plus 70  
years.
	• WIPO ratification. The EU is demanding that Canada respect the  
rights and obligations under the WIPO Internet treaties.  The EU only  
formally ratified those treaties this week.
	• Anti-circumvention provisions. The EU is demanding that Canada  
implement anti-circumvention provisions that include a ban on the  
distribution of circumvention devices.  There is no such requirement  
in the WIPO Internet treaties.
	• ISP Liability provisions.  The EU is demanding statutory provisions  
on ISP liability where they act as mere conduits, cache content, or  
host content.  ISPs would qualify for a statutory safe harbour in  
appropriate circumstances.  There is no three-strikes and you're out  
language (which presumably originates with the U.S.).
	• Enforcement provisions.  The EU is demanding that Canada establish  
a host of new enforcement provisions including measures to preserve  
evidence, ordering alleged infringers to disclose information on a  
wide range of issue, mandate disclosure of banking information in  
commercial infringement cases, allow for injunctive relief, and  
destruction of goods.  There is also a full section on new border  
measures requirements.
	• Resale rights.  The EU is demanding that Canada implement a new  
resale right that would provide artists with a royalty based on any  
resales of their works (subsequent to the first sale).
	• Making available or distribution rights.  The EU is demanding that  
Canada implement a distribution or making available right to copyright  
owners.
These are just the copyright provisions.  There are sections dealing  
with patents, trademarks, designs, and (coming soon) geographical  
indications. These include:
	• requiring Canada to comply with the Trademark Law Treaty (Canada is  
not a contracting party)
	• requiring Canada to accede to the Hague System for the  
International Registration of Industrial Designs
	• creating new legal protections for registered industrial designs  
including extending the term of protection from the current 10 years  
to up to 25 years
	• requiring Canada to comply with the Patent Law Treaty (Canada has  
signed but not implemented)
	• requiring Canada to establish enhanced protection for data  
submitted for pharmaceutical patents
While the leaked document may only represent the European position,  
there is little doubt there will be enormous pressure on Canadian  
negotiators to cave on the IP provision in return for "gains" in other  
areas.  The net result is that when combined with the ACTA  
requirements, Canadian copyright law reform may cease to become  
Canadian. Instead, the rules will be dictated by secretive agreements  
as the U.S. and Europe tag team to pressure Canada into dramatic  
changes far beyond those even proposed in Bills C-60 or C-61.