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EU Demands for Trade Deal Would Reshape Canadian IP Law

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Monday December 21, 2009
More than 20 years ago, Canada negotiated a free trade agreement with the United States that attracted enormous public attention.  The first FTA - to be followed a few years later by the North American Free Trade Agreement that brought Mexico into the mix - played a pivotal role in a national election and ultimately resulted in dramatic changes to the economy and Canadian law.

My weekly technology law column (Toronto Star version, homepage version) notes that earlier this year, Canada and the European Union announced plans to negotiate a Comprehensive Economic and Trade Agreement (CETA), possibly the biggest Canadian trade negotiations since NAFTA.  The first round of talks took place in Ottawa in October, yet the treaty has generated practically no public scrutiny. That may change following the leak last week of the European Union's proposed intellectual property chapter.

Simply put, the EU demands target the entire Canadian economy.  They include increased patent protection for pharmaceutical companies, heightened support for famous trademarks, and new rules for industrial designs.  The EU is also keen on restrictions on the use of geographic indications, which would limit the ability of Canadian wine and cheese makers to use such words as champagne or parmesan.

The EU has emphasized its desire that Canada comply with a series of treaties that have not been signed or ratified.  Demands focus on Canadian accession to the Hague System for the International Registration of Industrial Designs, implementation of the World Intellectual Property Organization Internet treaties, and compliance with both the Trademark Law Treaty and the Patent Law Treaty.

The EU draft indicates the treaty would also dramatically reshape Canadian copyright law.  Indeed, when combined with the Anti-Counterfeiting Trade Agreement (the other ongoing secret negotiation), the two agreements would render Canadian copyright law virtually unrecognizable.  The notion of a "made-in-Canada" approach promoted by Industry Minister Tony Clement - already under threat from ACTA - would be lost entirely, replaced by a made-in-Washington-and-Brussels law.

The leaked document includes the following demands:

Copyright term extension.  The current term of copyright protection in Canada is life of the author plus 50 years.  This is consistent with the term requirements under the international law.  The EU is demanding that Canada add an additional 20 years by making the term life plus 70 years.

Digital lock provisions. The EU is demanding that Canada implement digital lock provisions that include a ban on the distribution of circumvention devices. There is no such requirement in the WIPO Internet treaties.

Enforcement provisions.  The EU is demanding that Canada establish a host of new enforcement provisions including measures to preserve evidence, ordering alleged infringers to disclose information on a wide range of issues, mandating disclosure of banking information in commercial infringement cases, as well as allowing for injunctive relief and destruction of goods.  There is also a full section on new border measures requirements.

Resale rights.  The EU is demanding that Canada implement a new resale right that would provide artists with a royalty based on any resales of their works subsequent to the first sale.  This new right would mean that paintings, sculptures, and other works would carry an additional royalty fee for any sales after the creator has sold their work.

While the leaked document may only represent the starting European position, there is little doubt there will be enormous pressure on Canadian negotiators to cave on the IP provision in return for gains in other areas.  CETA may not have attracted much attention to date, but its long-term implications could ultimately exceed the first Canada/U.S. FTA.
Comments (18)add comment

JK said:

...
Maybe it's time for the children of the creators to get a job, rather than continually leaching off the works of their parents. That's exactly what 70 years after the death is all about.

Resale rights? I can do with the item I bought how I want, what I want. I can resell it, give it away, throw it away, destroy it.

What the hell is the EU trying to prove? Demand , demand, demand...

Maybe Iran and North Korea have the right idea with the middle finger.

C'mon, people.

Nothing good will come of all this.
December 21, 2009

Eric L. said:

...
At least on the copyright issue, it appears that the EU is nothing more than a sock-puppet of the US, which in turn is nothing more than a sock-puppet of the MPAA, RIAA, etc.

What a small world.
December 21, 2009

Barry Sookman said:

...
Michael, as for your comment about the EU agreement reshaping Canadian law, you should read the blog posting by Dr. Ficsor who disagrees with you. Invitation to Canada to join the international community by ratifying the WIPO “Internet Treaties” http://bit.ly/5R0Jya
December 21, 2009

db said:

...

Copyright term. - I agree we should make the copyright term 20 years total. We should also extend copyright to include everything that can be 'created'. BTW I 'created' some carbon dioxide earlier and it looks like your plants are using it.

Digital lock provisions - I agree we do need a law that ban these anti-customer devices.

Enforcement provisions. - I agree commercial infringment enforcement provisions should be greatly enhanced, maybe 10000 lashes for companies that use copyrighted material without compensating the artists, even if they add them to a 'maybe we'll pay you one day' list.

Resale rights. Sounds good, but artisits work are not the only things that get resold. We should pay everyone a resale 'fee' everytimeanything is resold.
December 21, 2009

ACTAs Daddy said:

ACTA needs to go further
Perhaps we can remind Europe about our assistance circa 1940's; else we can patent a time-machine and undo previous assistance.
December 21, 2009

Geof said:

...
Dr Fiscor calls commenters on Geist's bog "'free access" revolutionaries. He compares us to "Maoist Guards" during the Cultural Revolution. "Nobody," he writes, "nobody is more ready to suppress any contrary speech than these 'liberal' (alleged) 'free-speech' champions." He writes of Eastern Europeans, "we have had quite bad experience of certain 'free access' 'revolutionary' collectivist systems constrained on us for several decades."

I don't think he has been paying attention to how copyright is actually being used to suppress speech and extend the power of copyright collectives. The real revolution would be rewriting Canadian law to conform to the radical measures he supports. Regardless, comparison to the Cultural Revolution are absurd. My in-laws were sent to the countryside for reeducation during the Cultural Revolution. Fiscor is flirting with Godwin’s Law.

However, posting this hysterical ideological outpouring or Barry Sookman’s blog is not without purpose. The WIPO treaties are Dr Fiscor’s baby: as Assistant Director General at WIPO in 1996, he oversaw their adoption and early implementation. Now he works for the International Intellectual Property Alliance, which represents Big Copyright around the world pushing for maximalist copyright. The citizens who wrote 8,000+ submissions to the copyright consultation are not his audience - or Sookman’s. In 1996, the people in the room were political and business elites. Fiscor is making an attempt to portray us to those elites as the feared “masses”: a mob that is revolutionary not necessarily because of its views on copyright (which are in fact quite diverse), but because we are demanding to be included in the process. Of course a mob is incapable of formulating any kind of reasoned argument. It must have been incited. The enemy must be given a leader and a target. We are merely “devoted followers” of Geist. (Making him the Big Bad also helpfully sidelines all the other politicians, artists, businesspeople, and scholars opposed to copyright extremism.)

What has been proposed, and what Ficsor and Sookman are to be supporting, is a trade-off. Everyday freedoms of individual Canadians would be bartered away in order to secure trade for Canadian companies. This is an extraordinary attempt to extend trade policy into people’s private lives. Nevertheless, in a a democracy that might be justifiable if the interests of those companies corresponded to the interests of most citizens: after all, corporations are supposed to exist in order to benefit ordinary people. But then there would be no need to attempt to portray citizens as a mob of revolutionaries.
December 21, 2009

Captain Hook said:

Pot Kettle Black
Dr Fiscor saiz: (From BarrySookman's website) "Nobody is more impatient and nobody is more ready to suppress any contrary speech than these “liberal” (alleged) “free-speech” champions."

The irony in this statement is that I have yet to come across a blog opposed to industry's ideas of copyright reform that does not accept and publish my comments. On the other hand I've frequently had sites like www.barrysookman.com, www.creatorscopyright.ca, and other, which refuse to publish my comments.

I doubt Barry has ever seen his comments here removed, yet one cannot even post to his site without his approval which he frequently does not give.

Me thinks you proJECT to much. :-)
December 21, 2009

Anon-K said:

...
Dr Ficsor's resume can be found at: http://www.iipa.com/html/Bio_Mihaly_Ficsor.html

Just so as we can evaluate his comments in context.
December 21, 2009

maebnoom said:

...
Captain Hook - all too true. Imagine if those kinds of people always got their way. Brutal hypocrisy.
December 21, 2009

Laurel L. Russwurm said:

Corporations should not be ALLOWED to hold copyright
Fiscor and Sookman employ what George Orwell called doublethink and/or doublespeak.

The only difference is that their masters are actually Big Copyright. (And they are seelking to control not only us, but governments around the world as well. So they're simply following that time honored practice of maligning the enemy in an attempt to discredit us. I think it is terribly funny that Mr. Barry Sookman has to come to Professor Geist's blog to try to drum up business though.

@JK sadly, there are some creator descendents leaching off their parents work (Frazetta's spring to mind, and poor Frank isn't even dead yet). But the families aren't the ones driving these insane copyright law changes. Corporations who hold IP copyright are the ones behind Sookman and Fiscor. Big Copyright doesn't want their gravy train to end. Although they're only fighting for 20 year increments at a time, I have no doubt the real goal is perpetual copyright.

Traditionally creators had to make deals with corporations to get access to distribution, quite often signing away some or all claim to copyright in order to be heard and distributed. Pretty much only the stars who got to be established names managed to get or keep 100% of their own copyright. These big corporations control most copyrights. Individually these don't pay much but put together it makes a whopping amount of cash. The copyright lobby doesn't want that steady income to go away.

The cultural flip side is that as long as these corporations control extensive copyright holdings, they don't NEED to promote new creations. It's much better for business to limit new material. When you own vast libraries of copyright material new material is bad for business because it is competition to the holdings.

Even worse, all those new artists out there creating their own books and music and movies and having the temerity to distribute it online themselves are competing with Big Copyright holdings without putting anything in the Big Copyright Kitty. Blasphemy.

Something that is not clear; is the EU themselves currently doing all of these nasty things they are telling Canada to agree to? Considering things I've read from the other side of the pond I don't think they are... or of they are it is awfully recent.
December 21, 2009

psema4 said:

Moved: Invitation to Canada to join the international community by ratifying the WIPO “Internet Treaties”
The article Barry Sookman referred to (http://bit.ly/5R0Jya) appears to have been moved elsewhere on barrysookman.com.

I refreshed the page - just looking to see if any comments had been posted - and I recieved the message: "Apologies, but we were unable to find what you were looking for. Perhaps searching will help."

It's now at http://bit.ly/4MMG1C
December 21, 2009

Captain Hook said:

Dr. Ficsor
@Anon-K

right you are
- Dr. Ficsor is a consultant to the International Intellectual Property Alliance
- Dr. Ficsor is President of the Hungarian Copyright Experts Council (a 200 member advisory and arbitration body appointed by the Minister of Justice)


At the World Trade Organization (WTO), Dr. Ficsor is a member of the roster of intellectual property experts for dispute settlement panels. He has been a member of a panel in one of the most important intellectual property disputes (between the European Union and Canada), and, in another dispute (between the United States and Japan), the parties reached agreement in the consultation phase, inter alia, on the basis his expert opinion. (http://www.fordhamipinstitute.com/ip_conference/documents/Mihaly_Ficsor_Bio.pdf)

---------------------------

He has a vested interest in longer and more complicated copyright laws, and unfortunately is smack dab in the middle of this particular discussion between Canada an the EU, which does note bode well for us!
December 21, 2009

Spike said:

@Sookman
Just how much is the CRIA paying you to slag off Mr. Geist?
Come on now, be honest.

Puppet.
December 21, 2009

Name said:

New website of australian minister Stephen Conroy
http://stephen-conroy.com/news.php

STEPHEN CONROY: MINISTER FOR FASCISM.

“On the afternoon of Thu 17th, 2009 SAPIA Pty Ltd registered the domain name ’stephenconroy.com.au’ as a satirical platform on which to air grievances and promote debate about the Australian governments proposed mandatory Internet filtering scheme,” says a statement, going on >>>

By 5pm the next day, the website was forcibly taken offline by auDA, Australia’s domain authority body after a complaint concerning the registrant’s eligibility was raised, presumably by Stephen Conroy’s office: the Department of Broadband, Communications and the Digital Economy.

SAPIA was given merely 3 hours to issue a response which is an unusually short period of time for domain eligibility complaints to be arbitrated. Typically domains in question are given up to 10 days for arbitration to occur. This time frame was manifestly inadequate to obtain representation and prepare an appropriate response and a request for additional time was denied personally by Chris Disspain, auDA’s CEO shortly before the domain was taken offline.

This naturally raises concerns about outright Internet censorship at worst, collusion between auDA and the government as a possibly, and at best a knee-jerk political reaction by auDA which appears on the face of it like the suppression of political debate in Australia.

This situation echos the 2006 takedown of Richard Neville’s John Howard “Apology” parody website, which disappeared without recourse.

The website will remain online at http://stephen-conroy.com regardless of future decisions by auDA. IT professionals, Law experts and the Internet community at large have contacted SAPIA expressing their support and we will continue to express our discontent in a democratic, law abiding manner as is appropriate for a free and civilised western country such as Australia.

Open Letter To Chris Disspain - auDA
Monday 21 December 2009 - 13:08:22
We've just sent this open letter to auDA regarding our domain dispute over the 'stephenconroy.com.au' and other domain names, we now await their reply:

I'd like to take the opportunity to make the following representations to you on behalf of stephenconroy.com.au:

1) Our domain names were registered by a recognised business entity for the purpose of democratic protest against Senator Stephen Conroy. We feel that this constitutes a close and direct connection to the name. The website contains no illegal material.

2) We were given manifestly inadequate time to make submissions as to the validity of our registration. The research we've done indicates that this is almost unprecedented. We have been made aware of a policy dispute lodged over 'financetech.com.au' (auDA complaint C0908912) earlier today. In auDA's reply Vanessa Stanford notes that an investigation of this dispute could take up to 30 days. This seems to be quite contrasting with the period of less than 3 hours we were given.

3) We are aware that auDA's office is closed between 22'nd December (tomorrow) and 11'th January. This would mean that our domain 'pending delete' would expire while your office is closed and we would arbitrarily lose the domains. How do you expect to run an investigation in to our eligibility while your office is closed ?

4) We request that the stephenconroy domains are immediately returned to our control. If you would like to investigate this further we request that control is at least returned for the break period in order to avoid us arbitrarily losing them.

Please note that this is an open letter which we intend to publish and release to the press immediately. As you may be aware this issue has and continues to receive significant media interest. Given that your office is closing tomorrow we request a reply to this communication as soon as possible.
December 21, 2009

Turn Coin said:

And Canada gets....?
What's Canada supposed to get out of all this?
December 21, 2009

maebnoom said:

...
Bend over & you can get it, too.
December 22, 2009

esther said:

ms
Problem is people still buy all this copyrighted stuff. They grumble, but they buy. Until we withhold our dollars and cents from those who get too anal and petty, we won't be taken sriously. Money talks.
December 23, 2009

romeogolf said:

...
Geof said: "...after all, corporations are supposed to exist in order to benefit ordinary people."

Actually, Geof, corporations exist to maximize shareholder value; that's it.
November 13, 2010

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