My post yesterday on how the EU plans to use the Canada – EU Trade Agreement (CETA) as a backdoor mechanism to implement the Anti-Counterfeiting Trade Agreement (ACTA) provisions has attracted considerable attention with coverage from European media and activists. The European Commission refused to comment, stating that it does not comment on leaks.
Some have noted that since the leaked CETA IP chapter dates from February 2012, the concern is premature since the current EC position may change in light of the recent European Parliament vote to reject ACTA. According to this view, “it’s more than likely that the European Parliament will kill CETA just as (and because of) ACTA was killed last week.”
While a change to the IP chapter would be welcome (I argued it should be removed from CETA altogether), I think the concern is warranted for several reasons.
First, the latest debrief on the CETA negotiations from Canadian officials in May 2012 indicated that the copyright provisions were no longer the source of serious disagreement. This suggests that both sides have largely agreed on the ACTA model for CETA. In fact, the square brackets (which indicate disagreement) were already removed from many ACTA provisions in the February draft including the rules on general obligations on enforcement, preserving evidence, damages, injunctions, and border measure rules.
Second, CETA follows the same secrecy model as was the case with ACTA. No official text has been released and there is every reason to believe that the public will gain official access only after the negotiations have concluded. This will once again mean that the agreement is take-it-or-leave-it, with no scope for renegotiation. Waiting for the final text therefore runs the risk of another battle over ACTA in the European Parliament.
Third, that European Parliament battle will be more difficult than was the case with ACTA. CETA is a massive trade agreement of which intellectual property is only one chapter and the ACTA provisions are only one part of that chapter (there are also enormously problematic patent provisions that would drive up pharmaceutical costs). The agreement touches on virtually all aspects of the economy meaning the pressure on the European Parliament to approve the deal (if it is concluded) will be far stronger than was the case with ACTA.
Fourth, the inclusion of ACTA provisions within another trade agreement is emerging as a preferred model for some countries. As part of the Trans Pacific Partnership talks, there have been reports that Australia, New Zealand, and Singapore (all ACTA signatories) are pushing to include ACTA language within the TPP. Canada and Mexico may well adopt the same approach once they enter the negotiations.
In other words, it isn’t just about ACTA in CETA. While the European Parliament rejected ACTA, Switzerland won’t sign it, and an Australian parliamentary committee has recommended delaying ratification, the efforts to embed the ACTA provisions within new trade agreements is emerging as a core part of the long-term strategy by ACTA supporters.