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Michael Geist's Blog

The TPP IP Chapter Leaks: TPP and CETA May Conflict on Geographical Indications

My series of posts on the leak of the Trans Pacific Partnership intellectual property chapter has highlighted Canada's opposition to many U.S. proposals, U.S. demands for Internet provider liability that could lead to subscriber termination, content blocking, and ISP monitoring, as well as anti-counterfeiting provisions that are inconsistent with Bill C-8. This post discusses the section on protection for geographical indications and explains how U.S. demands conflict with Canada has already agreed to in the trade agreement with Europe (CETA).


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The TPP IP Chapter Leaks: U.S. Demanding Overhaul of Canadian Anti-Counterfeiting Bill

The leak of the Trans Pacific Partnership intellectual property chapter confirms that the many concerns about the agreement were well-founded. My earlier posts highlighted Canada's opposition to many U.S. proposals and U.S. demands for Internet provider liability that could lead to subscriber termination, content blocking, and ISP monitoring. This post focuses on some of the anti-counterfeiting requirements in the TPP.  The anti-counterfeiting issue is particularly relevant from a Canadian perspective because the government has proposed significant new anti-counterfeiting measures in Bill C-8, which is currently at second reading in the House of Commons and being studied by the Industry Committee. If the U.S. border measures demands are included in the TPP, Bill C-8 would be wholly inadequate to meet Canada's new treaty obligations.


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The Trans Pacific Partnership IP Chapter Leaks: The Battle Over Internet Service Provider Liability

The leak of the Trans Pacific Partnership intellectual property chapter generated global coverage as full access to the proposed text provided a wake-up call on U.S. demands and the clear opposition from many TPP countries. My first post highlighted Canada's opposition to many U.S. proposals, but nowhere is that more evident than in the section on Internet service provider liability. In fact, ISP liability in the TPP is shaping up to be a battle between Canada and the U.S., with countries lining up either in favour of a general notification obligation (Canada) or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking (U.S.).


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The Trans Pacific Partnership IP Chapter Leaks: Canada Pushing Back Against Draconian U.S. Demands

Wikileaks released an updated version of the secret Trans Pacific Partnership intellectual property chapter this morning (background on the TPP from my appearance before the House of Commons Standing Committee on International Trade earlier this year). The leaked text, which runs 95 pages in length and is current to August 2013, provides a detailed look not only at the chapter - it includes the full text - but also the specific positions being taken by all negotiating countries.

From a Canadian perspective, there is good news and bad news.  The good news is that Canada is pushing back against many U.S. demands by promoting provisions that are consistent with current Canadian law. Canada is often joined by New Zealand, Malaysia, Mexico, Chile, Vietnam, Peru, and Brunei Darussalam. Japan and Singapore are part of this same group on many issues. Interestingly, Canada has also promoted Canadian-specific solutions on many issues. The bad news is that the U.S. - often joined by Australia - is demanding that Canada rollback its recent copyright reform legislation with a long list of draconian proposals.

It is instructive to see how different the objectives of the U.S. are on intellectual property when compared to virtually all other countries. With the exception of the U.S., Japan, and Australia, all other TPP countries have proposed an objectives article (Article QQ.A.2) that references the need for balance, promotion of the public domain, protection of public health, and measures to ensure that IP rights themselves do not become barriers to trade.  The opposition to these objective by the U.S. and Japan (Australia has not taken a position) speaks volumes about their goals for the TPP.


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New Risks Emerge as Anti-Counterfeiting Bill Placed on the Legislative Fast Track

The government's anti-counterfeiting legislation, which died over the summer when the Conservatives hit the parliamentary reset button, is now back on the legislative fast track. Industry Minister James Moore quickly re-introduced the bill last month and speedily sent it to the Industry Committee for review (I appeared before the committee last week).  

That review has revealed that the numerous new border measures envisioned by the bill, including seizure powers without court oversight, fall short of the demands of intellectual property lobby groups. Those groups intend to use the committee hearings to seek further expansion of border seizures and to shift more enforcement costs to the public.

My weekly technology law column (Toronto Star version, homepage version) notes that since virtually everyone is opposed to harmful counterfeiting - particularly when fake goods create health and safety risks - it is unsurprising that the bill appears to enjoy all-party support. The focal point of the bill is that it grants customs officials broad new powers without court oversight. Officials will be required to assess whether goods entering or exiting the country infringe any copyright or trademark rights. Should a customs official determine that there is infringement, the goods may be seized and prevented from entering the country.


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Considering C-8: My Appearance Before the Industry Committee on the Anti-Counterfeiting Bill

I appeared yesterday before the House of Commons Standing Committee on Industry, Science and Technology for a hearing on Bill C-8, the anti-counterfeiting bill that has been placed on the legislative fast-track by the government.  The panel also featured representatives from the Canadian Anti-Counterfeiting Network, the Canadian Standards Association, and the Intellectual Property Institute of Canada. The hearing was cut short by a vote in the House of Commons, but there was still an opportunity for a ten minute opening presentation and to address a few questions from the committee members. My prepared remarks are posted below. Given time constraints and the comments of the other panel members, there were some adjustments (I omitted the first section on the scope of counterfeiting and noted that fellow panel members proposed the precise amendments I was discussing).


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Statscan Data Points to Canada's Growing Digital Divide

Statistics Canada released its bi-ennial Internet use survey last week and while much of the immediate reaction focused on the continuing growth of Internet use (due largely to increased usage by those aged 65 and older), my weekly technology law column (Toronto Star version, homepage version) argues the bigger story is the ongoing Canadian digital divide that confirms the strong link between household income and Internet use.

Statscan reports that 83 per cent of Canadians use the Internet, yet a closer examination of the data reveals a significant gap that is closely correlated to income. Moreover, the data also shows that Canada's high wireless prices now play a role in the digital divide, with only a quarter of lower-income Canadians using Internet wireless services.


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Federal Court Orders Bell to Pay $20,000 in Damages Over Privacy Violation

The Federal Court of Canada has ordered Bell TV to pay $20,000 in damages (plus an additional $1,000 in legal fees) for violating the privacy rights of a Nova Scotia satellite tv customer. The case arose when Bell TV surreptitiously obtained permission to run a credit check by including it as a term in its rental agreement without telling the customer. The customer asked for an apology and to remove the credit check from his record. Unsatisfied with the response, he filed a complaint with the Privacy Commissioner of Canada (which issued a well-founded finding) and later an action at the federal court.

When Bell did not bother to respond, the federal court found that the company did not offer any compensation or implement the privacy commissioner's recommendations. Accordingly, the court awarded $10,000 in damages and $10,000 in exemplary damages "for Bell's conduct at the time of breach of the privacy rights and thereafter."  The court added an additional $1,000 for disbursements and other costs.
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Fake Feta: Digging into the Intellectual Property Details of the Canada - EU Trade Agreement

The Canadian government released a technical summary of the Canada - EU trade agreement (CETA) yesterday, which provides further details on the draft agreement (tabling a summary of the treaty is a strange exercise and the government needs to release the full text). Within the summary, there are some further details on the intellectual property issues that were not highlighted in the initial releases.

First, while the emphasis on cheese and the dairy industry has focused on increasing the amount of European cheese that can be sold in Canada, the agreement also contains some notable new restrictions on the sale and marketing of cheese in Canada more generally.  Under the umbrella of geographic indications protections, Canada has agreed to new limitations on several well known cheeses including asiago, feta, fontina, gorgonzola, and munster. Existing Canadian producers can continue to use these names, but that's it - any future cheese makers will need to qualify the title by using words such as "imitation" or "style". This is a significant concession that effectively gives rights to existing producers on what many consumers would view as generic names.


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Is Bell's Plan to Monitor and Profile Canadians Legal?

Last week, Bell announced plans to implement new consumer monitoring and profiling practices that would greatly expand how it uses the information it collects on millions of subscribers. The planned scope of Bell's profiling is unprecedented in Canada, reflecting the power of a vertically-integrated media giant to effortlessly track their customers' location, media habits, search activity, website interests, and application usage.

My weekly technology law column (Toronto Star version, homepage version) notes the Bell plan generated a significant public backlash with the Privacy Commissioner of Canada launching an immediate investigation. Yet the company steadfastly defended its plans, saying that users are supportive of the new policy and maintaining that it is fully compliant with Canadian law.


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