[Infowarrior] - ACTA Lives: How the EU & Canada Are Using CETA as Backdoor Mechanism To Revive ACTA

[Richard Forno]

(Note there is a really handy chart at the website that shows the two bills' provisions side-by-side.  --rick)

ACTA Lives: How the EU & Canada Are Using CETA as Backdoor Mechanism To Revive ACTA

Monday July 09, 2012

http://www.michaelgeist.ca/content/view/6580/135/

Last week, the European Parliament voted overwhelmingly to reject ACTA, striking a major blow to the hopes of supporters who envisioned a landmark agreement that would set a new standard for intellectual property rights enforcement. The European Commission, which negotiates trade deals such as ACTA on behalf of the European Union, has vowed to revive the badly damaged agreement. Its most high-profile move has been to ask the European Court of Justice to rule on ACTA's compatibility with fundamental European freedoms with the hope that a favourable ruling could allow the European Parliament to reconsider the issue.

While the court referral has attracted the lion share of attention, my weekly technology law column (Toronto Star version, homepage version) reports that there is an alternate secret strategy in which Canada plays a key role. According to recently leaked documents, the EU plans to use the Canada - EU Trade Agreement (CETA), which is nearing its final stages of negotiation, as a backdoor mechanism to implement the ACTA provisions.

The CETA IP chapter has already attracted attention due to EU pharmaceutical patent demands that could add billions to provincial health care costs, but the bigger story may be that the same chapter features a near word-for-word replica of ACTA. According to the leaked document, dated February 2012, Canada and the EU have already agreed to incorporate many of the ACTA enforcement provisions into CETA, including the rules on general obligations on enforcement, preserving evidence, damages, injunctions, and border measure rules. One of these provisions even specifically references ACTA. A comparison table of ACTA and the leaked CETA chapter is posted below.   

The EU has also proposed incorporating ACTA's criminal enforcement and co-operation chapters into CETA. The criminal provisions were the target of European Parliament criticism for their lack of proportionality and uncertain application.

Canada has similarly pushed for the inclusion of ACTA provisions, proposing identical digital lock rules as well as ACTA-style Internet service provider provisions that raised privacy concerns from the European Data Protection Supervisor. In fact, Canada would like to extend ACTA by mandating an anti-camcording provision (a similar provision is currently voluntary in ACTA).

The European Commission strategy appears to be to use CETA as the new ACTA, burying its provisions in a broader Canadian trade agreement with the hope that the European Parliament accepts the same provisions it just rejected with the ACTA framework. If successful, it would likely then argue that ACTA poses no new concerns since the same rules were approved within the Canadian trade deal.

The backdoor ACTA approach creates enormous risks for Canada's trade ambitions. Given the huge anti-ACTA movement, the Canada - EU trade deal could face widespread European opposition with CETA becoming swept up in similar protests.

With anti-ACTA sentiment spreading across Europe, Canada should push to remove the intellectual property chapter from CETA altogether.  The move would not be unprecedented. Many of Canada's free trade agreements feature only limited IP provisions and last year a Canadian parliamentary committee recommended that "domestic copyright policies are not part of any present or future trade negotiations." 

Meanwhile, the U.S. and EU recently announced their own plans to negotiate a trade deal but agreed to keep intellectual property issues out of the talks. If CETA becomes known as ACTA II, the future of the Canada - EU trade deal may hinge on adopting a similar approach.

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http://www.michaelgeist.ca/content/view/6580/135/

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Just because i'm near the punchbowl doesn't mean I'm also drinking from it.