Article	April 2010 Draft	July 2010 Draft
Article 1.4: Privacy and disclosure of information	There was a placeholder stating an article needed to be drafted.	There is now text of the article.
Article 1.X: (General Principles)	No such article.	Aus/NZ/Sing/Can are proposing a generic set of principles for enforcement of IP, including social/economic welfare, transfer of technology etc.
Article 2.X.1: General Obligations with respect to enforcement	No such paragraph.	General statement regarding effective and expeditious action, and may not create barrier to trade.  The text is copied from article 41.1 of TRIPS.
Article 2.X.4: General obligations with respect to enforcement	Place holder for government exceptions/liability.	US has proposed text allowing for exemptions for governments based on fair compensation.
Article 2.X.6: General obligations (rights of the defendant and third parties)	Obligation to ensure the protection of the rights of the defendant and third parties appeared only under the criminal enforcement section.	This obligation has been moved to general obligations
Article 2.2.1: Damages	A more rigid calculation of damages as: compensatory to injury caused to right holder OR accounting of profits.	More flexible approach to how damages are calculated based on taking into account a number of factors.
Article 2.2.3: Damages (April 2010 draft)	Even unknowing infringers could be liable for accounting of profits or damages, and these could be statutory amounts. (Based on the January 2010 leak this was an EU proposal)	Removed.
Article 2.2.5: Damages (legal fees)	There were a 2 options proposed (which was a streamlining from the Jan 2010 leak).	A single clear statement that attorney and court fees can be ordered payable.
Article 2.6: Application by rights holder	Formerly 2 options for the scope of border measures on application by rights holder.	One of the few areas where another option has been put on the table.  The US/J/NZ/Can/Sing/Aus/CH/Mex have proposed a 3rd option (option #2 in the July draft) which clearly makes in-transit measures optional.
Article 2.14.1: Criminal Enforcement	Broader definition of what constitutes a “commercial scale”.	Specific wording suggested that would exclude (EU) or allow to be  excluded (US) end users from being involved in “commercial scale” operations.
Article 2.18.3, 3bis & 3ter: Enforcement Procedures in the Digital Environment (ISP safe harbour provisions)		A lot of progress was made, with ISPs qualifying for safe harbour more easily.
2.18.3(a): Obligations of ISP non-liability	ISP non-liability seemed optional for certain routine actions or those outside their control.	Everyone (except CH) now agrees that ISPs will not be liable at least for some routine actions or those outside their control (the details of which are mostly similar from the April to July draft).
2.18.3(b) Conditions for ISP non-liability in cases of temporary storage	The wording describing this temporary storage scenario was more vague in the April draft, was presented in several options and had more conditions associated with it.	Temporary storage is only conditioned on the ISP removing the material after notice that the offending material has been removed from the originating site.
2.18.3(c) Conditions for ISP non-liability in cases of linking users to offending material	As in the case of temporary storage above, in the April draft these conditions were presented in several options and had more conditions associated with it.	When linking an ISP will not be liable so long as they fulfill conditions: 1) ISP must not get direct financial gain 2) ISP must remove access to material once they get notice of alleging infringing material and there is no refutation from subscriber who posted the material 3) ISP must not have actual knowledge of the infringement
Article 2.18.4: Enforcement Procedures in the Digital Environment (Anti-circumvention provisions)	Unauthorized circumvention was prohibited	Substantially less circumvention is prohibited in the July draft: -Only unauthorized circumvention which is carried out knowingly (or with reasonable grounds to know) is prohibited - “unauthorized circumvention of copy control” (per footnote 56)  need not be prohibited
Article 2.18.X: Exceptions	Formerly 2 options regarding exceptions, the second of which was broader and did not contain a limitation precluding impairing legal adequacy.	ACTA parties have largely agreed on this wording to allow for exceptions which don't impair adequacy/effectiveness of protection.

The basic notion of the transition is fairly straightforward.  For decades, Canadian broadcasters have used spectrum to transmit over-the-air analog broadcast signals.  Before the widespread use of cable and satellite, many Canadians used antennae - "rabbit ears"- to access those broadcast signals.  

On August 31, 2011, Canadian broadcasters will switch from analog to digital broadcasts. The shift to digital brings several advantages including better image and sound quality as well as more efficient use of spectrum that will open the door to new telecom services.  It also requires those relying on over-the-air signals to have a television with a digital tuner or obtain a digital converter box to convert the digital signal back to analog.

Contrary to popular belief, many Canadians still rely on over-the-air signals.  In its latest update on the transition, the Canadian Radio-television and Telecommunications Commission estimated that up to 857,000 households in larger markets do not subscribe to either cable or satellite.  On top of those households, tens of thousands of rural households also depend upon over-the-air signals.

The CRTC has opened the door to a satellite alternative for rural communities, but households that rely on over-the-air signals in larger markets will need a digital converter box in order to continue to watch programs on their existing televisions. In the United States, the government subsidized the cost of the transition, establishing a coupon program that ultimately cost over $1 billion and forced a six-month delay of the transition when politicians feared that too many consumers were not ready.

Unlike the U.S., there will not be a Canadian subsidy program.  While the additional costs could affect lower income Canadians, who are also more likely to rely on the over-the-air signals rather than cable or satellite services, Canadian Heritage Minister James Moore has firmly rejected a similar approach.

A successful transition also depends upon educating Canadians about the changes. For example, the United Kingdom has established Digital UK, an independent, not-for-profit organization to the lead its process.  The organization is funded by the country’s private broadcasters and was established at the request of the government.  It maintains a comprehensive website and has launched a nationwide advertising campaign.

By contrast, other than the occasional CRTC release - Chair Konrad von Finckenstein has been sounding the alarm bells on the digital transition for months - the issue has attracted virtually no public attention in Canada. Moore has told Canada’s broadcasters that Canadians had "fair notice" about the transition and that the broadcasters should be prepared to complete the switch on schedule, emphasizing the transition "must remain on track."

But most Canadian broadcasters see little value in investing in a public education campaign without government support, particularly since they are already spending millions on digital transmitters. In fact, the mandatory deadlines for the transition were only established after it became apparent the broadcasters would not make the switch voluntarily.

The CRTC has tried to push the issue onto the public agenda, but has thus far faced government opposition and broadcaster indifference. As a result, when Canada’s broadcasters flip the switch next summer, hundreds of thousands of Canadians may find themselves on the wrong side of a new digital divide.

The court held that Canadian fair dealing analysis involves a two-part test.  First, does the use (or dealing) qualify for one of the fair dealing exceptions (the Supreme Court of Canada has called these user rights).  Second, if it does qualify, is the use itself fair.  In this particular case, the court affirmed that the copying in question qualified under the first part of the test (ie. for research or private study), but that it did not meet the six-part test for fairness and thus was not fair dealing.  In other words, claims that a new category would eliminate compensation is plainly wrong since the copying in question already qualified under a category of fair dealing.

It is critical to note that extension of fair dealing to education, parody and satire in Bill C-32 only affects the first part of the test.  In other words, while the bill will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.  The Supreme Court of Canada has identified six non-exhaustive factors to assist a Court‘s fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. 

Whether the use of the work qualifies as fair dealing depends upon both meeting both parts of the test.  In fact, the court notes:

I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright". However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.

The case represents a big win for the copyright collectives, but it also demonstrates that their concerns about C-32's fair dealing reforms are overstated.  The bill will open the door to other potential uses being treated as fair dealing, but the requirements for fairness remain unchanged. 

• U.S. rules contain a mandatory review of anti-circumvention exceptions every three years.  There is no mandatory review of the exceptions in the Canadian bill.
• U.S. rules contain an exception for unlocking and jailbreaking a cellphone.  Canadian rules only cover unlocking.
• U.S. rules contain an exception for education to circumvent DVD protection to gather a short clip.  Canadian rules, despite various new education exceptions, would treat this as an infringement.
• U.S. rules contain an exception for documentary film makers to circumvent DVD protection to gather a short clip.  Canadian rules, despite various new creator exceptions for parody and satire, would treat this as an infringement.
• U.S. rules contain an exception for everyone to circumvent DVD protection to gather a short clip to create non-commercial videos.  Canadian rules include an exception for non-commercial videos, but do not exempt circumvention.
• U.S. rules contain an exception for e-books designed to facilitate access for the sight impaired.  The Canadian rules do not contain a similar exception.
• U.S. law contains a flexible fair use provision that covers everything from recording television shows to making backup copies.  Moreover, at least one U.S. appellate court has factored these rules when considering the DMCA.  The Canadian rules contain a series of new fair dealing exceptions that are collectively still more restrictive than the U.S. fair use and are still subject to digital locks.

The response to the U.S. developments from Clement and Moore was interesting. Clement immediately asked his department to review the U.S. changes, presumably with a view to considering whether Bill C-32 should be amended.  Moore, after weeks of silence on copyright (after urging people to confront C-32 critics, Moore has said virtually nothing about the bill), tweeted about a music industry article that chronicled the biggest changes in the industry, including the shift from CDs to singles, the popularity of YouTube to listen to music, social media, and Pandora.  Oddly, Moore said the article "shows again the need for ongoing reform," yet, at the risk of being labeled a radical extremist, there wasn't anything in the article had much to do with legal changes at all. 

1.    The remarkable comments from European Commissioner Karel de Gucht sent the unmistakable signal that the EU is prepared to walk away.  De Gucht told the European Parliament that without the inclusion of geographical indication and industrial designs, the EU would have to reconsider the benefits of the treaty. Moreover, he pointed the finger at the U.S. for maintaining secrecy on the treaty (which leaked a day later).  The USTR acknowledged that the negotiating round did not meet its expectations.  While de Gucht's comments were taken by many as posturing for the negotiations, what if they reflect a sincerely held view that an ACTA without a broad scope of intellectual property is not worth the trouble?

2.   De Gucht also poured cold water on the next round of negotiations, assuring the European Parliament that he did not expect significant new developments until September.  While there were initial rumours of a Washington meeting next week, it now seems clear that will not happen. In fact, hope for a meeting in August in Washington may also be difficult to pull off given the conflict with European vacations that month.  There may be urgency on the U.S. side but it is not matched by the EU.

3.   Internal EU pressure against ACTA continues to mount.  Over the past week, two Dutch ministers raised transparency concerns with ACTA and the EU Article 29 Working Party expressed concerns with the privacy implications of the draft agreement.  Moreover, the European Parliament is inching closer toward enough signatories to pass Written Declaration 12, which would send yet another strong signal about its concerns with ACTA, its impact, and the lack of transparency.

4.    Tracing the changing text from the last three rounds (Guadalajara, Wellington, Lucerne) it is clear that the U.S. is doing most of the caving in an effort to rally support for the treaty.  The dropping of its three strikes language, the inclusion of de minimis, and the changes to the Internet chapter all reflect changes to language initially proposed by the U.S.

5.    Most importantly, there remains the seemingly intractable problem of the scope of ACTA. The EU looks to its robust geographical indications system and sees the area it most wants to protect.  The U.S., which is undoubtedly more concerned with protecting music and movies, simply can't agree to the EU demands (which cover over a dozen provisions) without making changes to its domestic laws. That step would run counter to prior commitments that ACTA would not change domestic U.S. law and would require Congressional approval.  The inverse situation arises in the context of anti-camcording rules.  The U.S. looks at the anti-camcording and sees the area it most wants to protect.  The EU sees an issue that would require going beyond current law that would require national approvals.

Put all of this together and the U.S. may face the choice of a major fight to get ACTA approved in Congress (with the EU on board) or the possibility of ACTA without the EU.  For the EU, it faces the prospect of an agreement that does not meet its major needs and for which there is mounting internal dissension or the possibility of walking away.  While there is no reason to think a breakdown of the talks is imminent - a deal is presumably still more likely than not - the possibility of an ACTA without the EU must be considered as an increasingly desperate USTR looks to save face on an ACTA largely limited to countries with which it already has a trade agreement in place.

Article & subject	Position #1	Position #2
Article 1.2: Nature and Scope of Obligations	Aus/EU/CH/NZ/Can: ACTA should be limited in scope of enforcement of IPRs	Others: Status quo of text, ACTA should cover both protection and enforcement of IPRs
Article 1.3: Relation to Standards concerning availability of IPRs	Aus/Can/Sing/NZ: ACTA does not apply to goods that do not infringe any IPRs in a members territory	Others: No such limitation should exist.
Article 1.X: (Principles)	Aus/NZ/Sing/Can: Should add on article that outlines principles of IP enforcement, such as technology dissemination and transfer, a manner conducive to social and economic welfare, measures necessary to protect health and nutrition, etc.	Others: Would not have this article and probably rely on a preface.
Article 2.x.4: General enforcement obligations (government liability)	US: Parties can limit remedies against governments	Others: No such limitation
2.1.1: Availability of Civil Procedures (scope of availability)	US/Mex/Can/Aus/Sing/NZ: Civil remedies available for copyrights, related rights and TMs	EU/J/CH: Civil remedies will be available to enforce any IPRs
2.x.1: Injunctions (scope of availability)	US/Can/NZ/Aus/Sing/Mex: Injunctions available for copyrights, related rights and TMs	EU/J: Injunctions available for any IPRs
2.x.1: Injunctions (scope of availability)	Can/Aus: Injunctions subject to statutory limitations under domestic law	Others: No identified limit.
2.x.1: Injunctions (third parties)	EU/CH: Rights holders in position to apply for injunction against intermediaries who services used by third party to infringe IP right [NZ/Mor/Mex want this permissive]	US/NZ/Can/Aus/Mex/J: Oppose this provision.
Article 2.2: Damages	US: Damage provisions apply to copyright, related rights, and TMs	EU: Damage provisions apply to all IPRs
Article 2.3: Other remedies (scope of availability destruction)	US/Aus/Can/Sing/Kor/NZ/Mex: Courts can order destruction for pirated or counterfeit goods	EU/J/CH: Courts can order destruction for any infringing goods.
Article 2.4: Information related to infringement (scope of authority's power)	US/Can/NZ/Aus/Sing/Mex: Courts can order information be disclosed about the infringement in the case of pirated/counterfeit goods	EU/J/CH: Courts can order information about infringement be disclosed about the infringement regardless of the type of infringement.
Article 2.5: Provisional measures (scope of procedures)	Can/Aus/Mex: Provisional measures should only be available for copyright, related rights and TMs	EU/J/CH: Provisional measures available for any IPR infringement
Article 2.5.2: Provisional Measures (Scope of evidence gathering)	US/J/NZ/MX/Aus: Judicial authorities can order the seizure of suspecting infringing goods and other evidence in the case of copyright, related right or TM counterfeiting	Others: Judicial authorities can order seizures for any type of infringement
Article 2.X.2: Scope of Border Measures	US/Sing/J: Border measures should be applied at least to copyright, related right and TM infringement and can be for other infringements	EU/CH: No recognition of any limits or optional expansion on the application of border measures
Article 2.X: De minimis provision	NZ/Aus/Can/Sing/Kor/J: De minimis exception should include goods sent in small consignments	Others: Small consignments not protected by de minimis exception.
Article 2.6: Application by Rights Holders for border suspension (scope of availability of suspension, both type of IPRs and obligation regarding goods in transit)	US/J/CH/Mex: Each party shall provide procedures to seize pirated copyright or counterfeit trademark goods at border when imported and may do so for in-transit goods	EU/Kor: Each party shall provide measures to seize any type of infringing goods at border being imported, exported or in transit (EU is alternatively proposing more general wording that parties shall provide procedures to seize goods at border for infringing IPRs (without explicitly distinguishing import/export/transit)
Article 2.7: Ex officio border action (scope: pirated/counterfeit vs all infringing)	Others: Customs officials may act on their own initiative to seize pirated copyright or counterfeit trademark goods	EU/CH: Customs officials may act on their own initiative to seize any type of infringing goods at border
Article 2.7: Ex officio border action (scope: imported/exported/in transit vs any infringing good)	US/J/Mex/Aus/Can/NZ/Sing: Customs officials may act on goods which are imported/exported/in transit	EU: Proposes more general language that customs officials can act on any type of infringing good, which specifying imported/exported/transit
Article 2.10: Determination as to Infringement Article 2.11: Remedies Article 2.13: Disclosure of Information	All three articles subject to scope - ie. copyright, related rights and TMs vs. all IPRs	All three articles subject to scope - ie. copyright, related rights and TMs vs. all IPRs
Article 2.14.1: Criminal Offenses (commercial scale and end users)	US/J/CH: Acts on a commercial scale for criminal offense MAY exclude end user acts	EU: Acts on a commercial scale for criminal offenses DOES exclude end user acts. [provision under internal examination in the EU]
Article 2.14.3: Criminal Offenses (anti-camcording offense)	Others: Camcording in a theatre is an offense.	EU/Sing: Delete this provision.
Article 2.18: Enforcement in the digital environment (scope of rights protected)	US/Aus/NZ/Can/Sing/MX: Parties shall provide measures to permit effective enforcement of copyright, related rights and trademark rights	EU/J/CH: Parties shall provide measures to permit effective enforcement of all IPRs
Article 2.18.3(c): Necessary conditions for ISPs to qualify for safe harbour	US: ISPs must not be receiving financial benefit directly attributable to the infringing activity	Others: No such requirement

Europe has the most extensive geographical indication protections in the world. These include Protected Designation of Origin (PDO), which covers agricultural products produced, processed and prepared in a given geographical area using recognized know-how; Protected Geographical Indication (PGI), which covers agricultural products linked to the geographical area; and Traditional Speciality Guaranteed (TSG), which highlights traditional character, either in the composition or means of production.

The net effect of the European system is that hundreds of items enjoy special legal protection.  In fact, the system is so extensive that the Canadian Association of Importers and Exporters have expressed concern that CETA could lead to new restrictions on the use of words such as "pizza" or "feta."

The GI protection under European law frequently clashes with the fact that for many consumers the GI has ceased to be associated with a particular geographic region and is instead viewed as a generic term for a particular type of product.  

For example, many consumers might not associate champagne wines with a specific region in France, but rather to a particular kind of white wine.  Similarly, the term "cologne," which is widely used to refer to perfumed fragrances, actually has its origins in the German city of Cologne.

Canadian courts have grappled with a number of geographical indications cases in the past, including an attempt by the Italian authority that regulates "Parma" for cured ham to stop Maple Leaf Meats from using the Parma trademark for some its meat products. The court sided with the Canadian producer, ruling that consumers would not associate its meat with products originating in Parma, Italy.

Over the past two decades, Canada has made significant changes to its own geographical indications system.  These include taking many popular terms - including Chablis, Champagne, Port, Bordeaux, Burgundy, Medoc, Grappa, Schnapps and Sambuca - off a generic list so that they could enjoy new geographical indication protection.

The irony with the Europe’s zeal to protect geographical indications within trade agreements is that effect may be to stifle trade, by stopping foreign competitors from marketing similar products using names that are understood by consumers as generic descriptions.

The latest round of CETA negotiations took place last week in Brussels, with the GI issue (along with protections for industrial designs that cover the fashion industry) a top priority for the European delegation.  The Canadian government unsurprisingly faces some opposition to the demands from domestic producers.

Similarly, the ACTA negotiations, which have become increasingly acrimonious, have hit a major roadblock with the Europeans demanding extensive new enforcement powers - including criminal and civil penalties - for GI violations.  The U.S. and Canada have been resisting the demand, leading Karel de Gucht, a European Commissioner, to warn last week that this was a "red line" issue that could cause the EU to rethink the merits of the entire treaty.