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CETA and Copyright: My Appearance Before the Standing Committee on International Trade

I appeared before the Standing Committee on International Trade to discuss the Comprehensive Economic Trade Agreement (CETA).

Appearance before the Standing Committee on International Trade February 15, 2011

Good morning.  My name is Michael Geist. I am a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law. I have been very active on copyright and intellectual property policy issues for many years. Last year, I edited From Radical Extremism to Balanced Copyright: Canadian Copyright and the Digital Agenda, the largest academic study on Bill C-32 to-date, with peer reviewed contributions from 20 leading Canadian experts.

I appear before this committee today in a personal capacity representing only my own views.

The committee’s recently released report on its CETA fact-finding mission focused on two primary intellectual property issues, geographical indications and pharmaceutical patents.  The committee is aware of some of the concerns associated with the EU proposals, particularly the impact on some Canadian agricultural products and on pharmaceutical pricing.

I would like to focus on another intellectual property issue within CETA copyright. I believe to fully understand the CETA copyright provisions, they should be viewed within the broader context of copyright trade pressures on Canada.

As committee members may be aware, Canada recently participated in the Anti-Counterfeiting Trade Agreement negotiations that concluded with a draft agreement in December 2010.  The United States and the European Union were two of the leading protagonists behind the treaty.  While few would oppose genuine efforts to deal with dangerous commercial counterfeiting, ACTA generated a global public outcry on at least two grounds.

First, the secrecy associated with the negotiations led to widespread concern about the negotiation of an intellectual property agreement outside the conventional international forum of the World Intellectual Property Organization and with a level of secrecy normally accorded only to military documents.

Second, the substance of the agreement extended far beyond addressing commercial counterfeiting issues.  Instead, there was a concerted effort to renegotiate international intellectual property law by increasing levels of protection beyond required norms.

The final agreement raises some concerns, though many of the most problematic provisions were ultimately amended under pressure from a coalition of countries that included Canada. I raise ACTA because many of the concerns associated with that treaty are being replicated within the CETA process, yet this time there is no coalition to argue for maintaining international flexibilities.

First, the same secrecy concerns that arose within the context of ACTA arise here.  It is true that there have been leaks of various CETA chapters including the intellectual property chapter.  Yet commenting on leaked chapters is not a substitute for a full and open consultation that permits expert analysis and opinion on proposed treaty rules.  Waiting until we have a final or even near final text is not good enough.  We need public access for the purpose of informed commentary before the final trade-offs in the negotiations are concluded.

Second, the substantive copyright provisions raise significant concerns. In this regard, I’d like to make five brief points:

1. The inclusion of intellectual property policy marks a dramatic shift for Canadian trade negotiations, which conventionally addressed market entry, investment, and tariff issues. As Dan Ciuriak, a former deputy chief economist at the International Trade department, has noted with respect to the CETA intellectual property provisions: “the process is not a sound one. In a hotly contested area, to have fundamental business regulation made in this fashion is not sound.”

2. The inclusion of copyright provisions within CETA is almost completely one-sided. With the exception of an anti-camcording provision that the EU already rejected within ACTA and is therefore unlikely to accede to here, Canada has made virtually no demands on the copyright front.  There is simply no evidence that there is anything in it for us.  Rather, the copyright provisions are blatant attempt by the Europeans to export rules to Canada that they have been otherwise unable to do via ACTA or other international agreements.

3. Some rights holders have used the CETA process as an opportunity to circumvent the domestic copyright reform process by promoting reforms within CETA that may later tie our hands for a made-in-Canada approach on copyright.  For example, the Canadian Publishers Council has provided a submission to the government calling for an extension in the term of copyright and the creation of a sui generis approach to database protection. Both reforms were soundly rejected during the 2009 copyright consultation and are not found in Bill C-32.  Yet this circumvention of the domestic policy process carries significant dangers if we are not careful.

4. The substantive proposals demanded by the EU are designed to re-work Canadian copyright law in a manner that extends well beyond international law.  Indeed, there are instances where Europe’s failed international efforts are being recycled within CETA, despite the fact that Canada stood opposed in international fora. For example, the World Intellectual Property Organization has been negotiating a proposed Broadcasting Treaty for over a decade.  The proposed treaty has never managed to obtain broad support, with many expressing understandable doubts that extending new rights to broadcasters merely for the act of broadcasting represents a significant shift away from traditional notions of copyright that serves the interests of creators and users.  Canada has expressed similar doubts at WIPO, yet CETA currently seeks to import the failed provisions into Canadian law.

Another critically important example are the digital lock rules found within CETA.  As you know, the digital lock rules in Bill C-32 have been amongst the most contentious provisions in the bill.  In fact, those provisions have always been contentious, dating back to their initial inclusion in the WIPO Internet treaties in 1996.  Those treaties established considerable flexibility in implementation in order to obtain consensus among the differing views on the issue.

The same concerns arose within the context of ACTA last year.  CETA includes digital lock provisions that extend beyond the requirements in the WIPO Internet treaties and would therefore remove some flexibility as Canada considers how best to comply with those treaties.

5. There are potential concerns with CETA and the current draft of Bill C-32.  For example, Bill C-32 codifies the notice and notice approach that has been used by Internet service providers across Canada for many years where they receive notifications of alleged infringement.  The notice-and-notice approach strikes a good balance between the rights of copyright owners and the interests of subscribers.  Yet the Europeans have proposed language that would require ISPs to remove or disable access to content upon being informed of an alleged infringement.  This appears to be an attempt to bring in a notice-and-takedown system that was rejected in Bill C-32 and in Bills C-61 and C-60 before it.

Another example involves statutory damages. Bill C-32 rightly distinguishes between commercial infringement, which carry full statutory damages of up to $20,000 per infringement, and non-commercial infringement, which carries a $5,000 cap on damages. The Europeans have proposed language that may contradict the C-32 approach.  Indeed, the Canadian counter-proposal currently seeks to preserve the ability to make adjustments in special cases.

In sum, copyright provisions were not part of the Canada, US FTA or NAFTA.  They were largely excluded or kept very minor in our other more recent trade agreements.  CETA represents a very significant change that is part of a broader effort to pressure Canada to change its copyright laws.

While most agree that there is a need for some reforms, discarding a made-in-Canada approach for one drafted in Brussels raises significant concerns that implicate both current and future legislative proposals.

Update: Barry Sookman rightly notes that I misspoke in my final paragraph on the inclusion of copyright provisions in the FTA and NAFTA.  There was one specific copyright provision in the Canada – US FTA and several in NAFTA. By comparison, the initial EU proposal for the CETA IP chapter ran for 23 pages covering dozens of provisions, multiple treaties, and over 8,000 words.

13 Comments

  1. What is wrong with our government????
    One sided trade agreements, secret negotiations, I thought our government was supposed to support Canada, not EU. If there is nothing in it for us, get rid of it.

    Going through the back-door is what I guess we can expect with the current government.

  2. BTW – Mr Geist – Excellent job on protecting the citizen of Canada from our Government misteps!!
    - wish they had someone as knowledgeable as you running some of these committees that look at technology issues. Someone that knows how to use an ipod or tweet and can access their email account sometimes, doesn’t constitute a technically skilled person. My long retired parents can open up their email accounts and tweet or get songs onto their iphone/ipod/ipad.

  3. I am, in principle, not opposed to the concept of “secret” negotiations. Conducting the negotiations in full view of the public can, in fact, make things more difficult, as it makes the give and take of negotiation more difficult; backing down on, what is for the party you are negotiating with, an outrageous or unacceptable demand places the negotiator in the position of potentially publicly losing face. There is a trade-off to be made; if we want the negotiations to be held completely in public we also run the risk of getting nothing done (the use of WIPO as an example goes both ways… it can also be held up as an example of the slow progress that can be made when negotiating a treaty in complete view of the public).

    Now, undue secrecy in the negotiations is another thing. ACTA went to far, in particular in the latter stages.

    In Canada we have the effective right to know what the government is doing as a result of access to information legislation. We have the responsibility to not abuse that right. Thus, we need to recognize that, from time to time, the government (of whichever party) will need to do things that is in the best interest of Canadians without the immediate oversight of vast numbers of people. We have a representative democracy; supposedly we elect people to represent us. We need for them to do their jobs; however they need for us to allow them to do so and avoid what could be considered micro-managing.

    At the end of the day it comes down to what you expect. If you want complete visibility to the public, you have to be willing to accept the risk that by the time that the treaty negotiations are complete that the need for it is gone away. This is especially true with a large number of countries participating.

  4. US FTA
    Did one of the FTAs not require changes to Canada’s copyright laws? (rental right?)

  5. When the bough breaks …
    The end run around of trying to put unpopular hand tieing rules in obscure international agreements is just plainly, simply wrong.

    Thankfully it is getting harder to pass off such duplicity quietly anymore, to the collective good of the people and the bane of the privileged.

    With careful scrutinty by watchdogs such as Prof. Geist and other not so savory sources like Wikileaks & even to some degree anonymous, … we can at least sleep a little better at night knowing there are now those who cannot.

  6. Canadian Consumer says:

    “I am, in principle, not opposed to the concept of “secret” negotiations. Conducting the negotiations in full view of the public can, in fact, make things more difficult, as it makes the give and take of negotiation more difficult; backing down on, what is for the party you are negotiating with, an outrageous or unacceptable demand places the negotiator in the position of potentially publicly losing face. There is a trade-off to be made; if we want the negotiations to be held completely in public we also run the risk of getting nothing done (the use of WIPO as an example goes both ways… it can also be held up as an example of the slow progress that can be made when negotiating a treaty in complete view of the public).

    Now, undue secrecy in the negotiations is another thing. ACTA went to far, in particular in the latter stages. ”

    I am trying to understand the reasoning for this and I can’t. What is it about these negotiations that is so time sensitive that requires complete compromise to facilitate the deal?

    I think your line of thinking carries some merit in a situation where a deal is imperative. In this case, we have our own sovereignty and there is no necessity to push ourselves over the edge in a “come to terms under one roof or else” deal.

    I think the public is allowed to lose respect and apply pressure where it sees fit. Unlike some, I think these negotiators work in the interest of the public, not in spite of them. If the public does not understand an issue well enough, education and information are essential for those that are undertaking such a drastic course for our vessel. This is not something that should be hurried. I don’t think our clients (the public) are stupid, and I don’t want to treat them as such… if they need us to make something clear we need to make it clear.

  7. I suspect what is being danced around, revolves around the difference between “electoral” vs “referendum” based decision making.

    Any negotiator goes into a meeting with a list of non-negotiable and negotiable points/issues. The meeting itself can be secret, it doesn’t really matter. The problem we have is that the “public” often doesn’t have any idea of the points, never mind the status of any of these points in the negotiations.

    The *only* time the public has any chance to really voice their opinion, is when they chose their electoral representative. If you feel they have made 10 good decisions during their term, and 3 bad ones, do you elect them again?

    The negotiator takes their instructions from (effectively) the elected representative(s), not the voting public. There are checks and inputs that are supposed to assist the representative in making the “right” choices, but the way it stands, if they blunder once we (as a country) are stuck with the result – even if we drop them at the next term.

    Perhaps it might be better to gather referendum style input on issues like these, such as the points under negotiation? It would certainly make tracking the “status” more meaningful.

  8. Barry Sookman says:

    Michael, your testimony to the Standing Committee was inaccurate. The FTA and NAFTA to deal with copyright. See my blog which highlights this. Is copyright part of the FTA or NAFTA? http://www.barrysookman.com/2011/02/19/is-copyright-part-of-the-fta-or-nafta/

  9. orphan works
    rive-by patents… orphan works and web-credits.. are another contentious issue.

    the broadcast treaty allows wholesale scalping and scraping which, combined with DRM takedowns, allows almost anything to get censored out of existence.

    I already see SONY and GOOGLE doing ‘blanket’ rights seizure on youtube.

    Google assumes sony has the rights and there’s NOTHING you can do to talk them out of it.

    it’s gonna get interesting soon.
    packrat

  10. Haha what a fantasy, what a spin, what a framing – “representative democracy”!
    “We have a representative democracy; supposedly we elect people to represent us. We need for them to do their jobs; however they need for us to allow them to do so and avoid what could be considered micro-managing.”

    Haha what a fantasy, what a spin, what a framing – “representative democracy” … we have an Oligarchy here in Canada, who are simply puppets for the self-appointed Elite – “The Chamber Of Commerce”. The puppets do only what’s good for “The Chamber Of Commerce” who represent only 2% of the Canadian population.

  11. Jack Robinson says:

    Some Good News? The CETA Deal Might Get Mired in Tar Sands Muck…
    Having only recently read about the sinister CETA dealings going down hidden from most of us comatose Canucks’ blurred purview on the Council of Canadians website… and the scary ramifications it’s de facto adoption could have upon virtually every aspect of our sovereign rights to publically managed infrastructure, net-benefit control of our primary resources, user-based regulation of broadcast and telecom networks and the whole enchilada (tortierre?) that constitutes our endangered identity as a nation… I just glommed a Reuters item indicating that Harper’s back room Rambos are prepared to back off in a hissy-fit over proposed Dirty Oil Tariffs.

    Could it be that the Neo Condrethals’ pique over proposed EU regulation of their Black Goo Zeitgeist might become an inadvertent boondoggle benefit to the citizenry they’ve betrayed by doublespeak and deceit?

  12. Barry is right – at least this time. The FTA and NAFTA definitely did deal with copyright issues.

  13. Eventually laws need to be scrapped period in order for progress to occur. Today in Alberta, there is still a law on the books that Businesses must provide rails for tying up horses.

    Patent laws, and to a lesser extent copyright laws as they pertain to source code destroy creativity. These laws do not require modernization but we should consider out and out abolishment. Today the power of a company is in marketing; putting handcuffs on competitors just hurts innovation.

    Today there are many curable diseases that exist because Patent laws exist. Every exceptionally brilliant man or woman I’ve met really does not concern themselves with money. They generally prefer notoriety. Yes lab equipment, and R&D do cost money. But big Pharma makes big profits.

    We need to look at a greater compromise that will allow Big Pharma and other industries to recoup R&D costs, but bring competition earlier. Anyone who truly understands the consumer, also understands that the “first to market” is a powerful reward mechanism within itself. Creating a monopoly by using patents just makes you a lazier company – the exact opposite of what a model of capitalism intends.

    I look forward to the day when people who are not concerned only with money have a greater voice at the table. For now it seems we will allow Monsanto, EMI Records, and other lobbyists represented decide the health and well being of our children’s future.