Canada - EU Trade Agreement Reached "In Principle", Part Two: The Intellectual Property Provisions
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Friday October 18, 2013
Intellectual property was one of the most contentious aspects of the
CETA negotiations, with copyright, patents, and geographic indications
all sources of concern. A summary of the impact of CETA on each is
posted below (additional posts on the need to release the text and the telecom and e-commerce provisions).
Early CETA drafts included extensive copyright provisions that would have rendered Canadian copyright law virtually unrecognizable from its current state. The EU position on copyright changed after two developments in 2012. First, Canada passed long-awaited copyright reform that addressed several concerns, most notably legal protection for digital locks and ISP liability. Second, the EU abandoned many of the remaining demands after the European Parliament voted overwhelmingly in July 2012 to reject Anti-Counterfeiting Trade Agreement, striking a major blow to the hopes of supporters who envisioned a landmark agreement that would set a new standard for intellectual property rights enforcement.
The resulting copyright provisions appear benign, as the government is claiming that CETA is consistent with current Canadian law:
Canadian law is already in line with the WIPO Internet treaties (the ratification process is currently underway) and the reference to "upholding the right balance" suggests no further legislative reforms will be needed.
Patents was the other major source of contention with Canada expected to cave on several reforms that would increase pharmaceutical costs for Canadians and benefit the large pharmaceutical companies. The summary document suggests that the pharmaceutical companies only got part of what they wanted. They had demanded both data exclusivity (which refers to restrictions on the use of clinical test data by generic competitors) and patent term restoration (which refers to the extension of patents to account for a period when a patent is granted but other approvals for sale of the drug are pending). The EU got patent term restoration, which will allow the large pharmaceutical companies to extend the term of their patents and keep generics off the market for an extended period of time. Prime Minister Stephen Harper has admitted that this will result in higher health care costs, while a new government report indicates that pharmaceutical investment in research and development in Canada continues to decline. The summary states:
With respect to the pharmaceutical sector, CETA will provide extended protection for innovators while ensuring that Canadians continue to have access to the affordable drugs they need. CETA reinforces the Government of Canada’s commitment to attracting and retaining investments that support high-paying jobs in Canada as well as rewarding innovators and ensuring that Canadians are able to reap the fruits of such innovation. This helps keep Canada as an important destination for research and development and supports Canadians’ access to the most innovative medical breakthroughs.
Once again, a draft text is needed to fully assess the impact.
Geographical indications (GI) are signs used on goods - frequently food, wine, or spirits - that have a specific geographical origin and are said to possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Given the quality associated with the product, proponents of GI protection argue that it is needed to avoid consumer confusion as well as to protect legitimate producers.
Europe has the most extensive geographical indication protections in the world. These include Protected Designation of Origin (PDO), which covers agricultural products produced, processed and prepared in a given geographical area using recognized know-how; Protected Geographical Indication (PGI), which covers agricultural products linked to the geographical area; and Traditional Speciality Guaranteed (TSG), which highlights traditional character, either in the composition or means of production.
The net effect of the European system is that hundreds of items enjoy special legal protection. Over the past two decades, Canada has made significant changes to its own geographical indications system. These include taking many popular terms - including Chablis, Champagne, Port, Bordeaux, Burgundy, Medoc, Grappa, Schnapps and Sambuca - off a generic list so that they could enjoy new geographical indication protection. CETA would appear to expand that list, though the government has not provided any specifics:
Geographical indications provide exclusive rights for a product based on its geographical origin in cases where origin is considered to confer a particular quality or character to the product. Canada already recognizes geographical indications for wines and spirits - for example, French Cognac and Canadian Whisky. CETA will include a wider recognition of EU geographical indications for foodstuffs, such as certain meats and cheeses (e.g., Chabichou du Poitou), that builds upon Canada’s existing regime for geographical indications.
CETA also effectively confirms that the government will be moving ahead with its anti-counterfeiting legislation. The summary states:
CETA echoes the government's commitment to combatting trade in counterfeit goods, which is increasingly a source of concern for consumers, businesses and governments. Counterfeit goods are often of poor quality, can be dangerous to the health and safety of Canadians, and disrupt markets for legitimate companies. CETA will ensure simple, fair, equitable and cost-effective enforcement continues, leading to a more predictable regime for intellectual property rights.
This suggests that there will be new border measures provisions in Canada, including the power to seize allegedly infringing goods without a court order. Once again, the actual text is needed to compare CETA with current (and proposed) Canadian law.
Friday October 18, 2013