Canada – South Korea Trade Agreement Demonstrates Deals Possible Without Increasing IP Protections

Canada and South Korea announced agreement on a comprehensive trade agreement earlier today. The focus is understandably on tariff issues, but the agreement also contains a full chapter on intellectual property (note that the governments have only released summaries of the agreement, not the full text, which is still being drafted). The IP chapter is significant for what it does not include. Unlike many other trade deals – particularly those involving the U.S., European Union, and Australia – the Canada-South Korea deal is content to leave domestic intellectual property rules largely untouched. The approach is to reaffirm the importance of intellectual property and ensure that both countries meet their international obligations, but not to use trade agreements as a backdoor mechanism to increase IP protections.

Yesterday I noted that Canada might be asked to increase the term of copyright protection given that South Korea had agreed to longer copyright terms in its recent agreements with the European Union, Australia, and the U.S. In fact, the U.S. agreement contains extensive additional side letters on Internet provider liability, enforcement, and online piracy.  The Canada – South Korea deal rejects that approach with copyright, trademark, patent, and enforcement rules that are all consistent with current Canadian law (plus the coming border measures provisions in Bill C-8). 

On copyright, the summary states the agreement:

  • reflects Canada’s regime as updated by the 2012 Copyright Modernization Act, which brought Canada into compliance with the World Intellectual Property Organization’s two Internet treaties;
  • reiterates existing aspects of Canada’s regime, including the protection of technological protection measures (technology designed to protect copyrighted material), protection of rights management information, and special measures against copyright infringers on the Internet (no change to Canada’s notice and notice regime, which defines the responsibility of Internet service providers in respect of copyrighted material on their networks).

The specific reference to notice-and-notice is important since it confirms no takedown requirements nor three-strikes rules. The specific measures against copyright infringers may be interpreted as Canada’s enabler provision that targets websites that facilitate infringement. Moreover, the references to reflecting Canada’s regime indicates that there is no copyright term extension or other substantive changes.

The approach is much the same on both trademark and patent. On trademark, the summary states the agreement:

reflects existing aspects of Canada’s trademarks regime, including those pertaining to trademark registration, application and cancellation as well as to well-known trademarks.

while on patents, it states the agreement is:

in line with Canada’s current regime, including criteria regarding patentability and exclusions from patentability; no new commitments in the area of pharmaceutical patents.

The IP approach is notable for several reasons. First, the agreement confirms that neither Canada nor South Korea view increased IP protections as a trade priority.  This is not particularly surprising, but it is important within the context of the Trans Pacific Partnership negotiations. Canada is clearly committed to its current rules and seems likely to continue to oppose U.S. and Australian efforts to increase protections in the TPP.

Second, the decision to maintain existing domestic laws without pressuring the other country to conform to its approach illustrates that claims of the necessity for harmonized IP rules in trade agreement are simply untrue. A far more appropriate approach is to require consistency with international obligations.

Third, the Canada – South Korea agreement may provide a model for many other countries that wish to include intellectual property provisions in their trade agreements but are content to require each party to meet international standards rather than the domestic rules of one of the parties. The U.S. and E.U. approach has been to export their rules to other countries, but Canada and South Korea have demonstrated that respect for domestic choices and compliance international obligations is a better alternative.


  1. Enjoyer of shows
    This really ticks me off that they don’t give easy cheap way to watch the shows you want when you want to watch them.

    Netflix Canada is a joke, not only are they at least a season behind on everything thats on TV, but they don’t even carry everything that is on TV.

    Many companies are now putting online viewing of shows behind payalls that you can only get if you have their TV service.

    Here are the reasons why I download shows.

    I don’t have a PVR/DVR. Last time I looked the only one I could get that would only work with my cable company was over 400 dollars. I just don’t have that kind of money, even if I tried saving up it would be a long long time before I could get it.

    The shows are on at times that I can’t watch them. Its either because I am out, or not around. Or in some cases I am watching a show on another channel and just can’t watch 2 shows at once. Or just not feeling well and really just don’t feel like sitting there and watching it.

    They are better quality on my computer then on my TV. I don’t have a great TV, but my computers monitor and speaker system are far better.

    I can pause them at any time to get something to eat, drink, use the bathroom, get a phone call or friends drop by.

    Storm somewhere and cable keeps acting up to the point I am missing parts.

    Show gets interrupted by important announcements or get preempted because of stupid sports.

    I can rewatch it if I missed something or because there was a part I really liked and want to see it again.


    If there was a single website where I could download (not stream) new and old episodes and movies that were good quality and low file size (choice of 720p or 1080p MKV or even WMV) with no required program to install to download or watch and no requirement to have a cable provider to access it for one low price a month (as low as netflix) then I would gladly give them 8 bucks a month. Heck I would even be ok if there was ad breaks in the show (like there is on TV) and even if there was some ads showing on the page either before it showed me the link for the file or while I downloaded the show to watch. As long as I can skip past the ones in the video file because well, I (and I assume others) don’t bother watching them on TV either, I always end up flipping channels or bathroom run.

    They could further make things easier on their side by making all the files available via torrent link so that all their customers could help them out with the bandwidth.

  2. oops
    I somehow posted the above in the wrong place, I thought I had replied to a post talking about the messages the copyright trolls are about to start sending out to Canadians bypassing the courts all together. I must have hit the wrong tab when I posted it.

  3. MillionGamer says:

    Is this at least a good sign
    So there will not be any Ip protection with this trade deal between Canada and South Korea?

  4. Richard Stallman says:

    The term “intellectual property” is a fundamental conceptual error,
    grouping copyright law with other unrelated laws as if they were a
    single topic.

    This is not a pedantic criticism; when your thinking starts with a
    basic error, it tends to lead to lots of specific errors.

    See for more explanation.

    What the treaty says about copyright is harmful because it is an obstacle
    to repealing the harmful parts of Canada’s recent change in copyright law.
    Copyright needs to last a shorter time, and tools to break digital
    handcuffs (DRM) should be legalized.