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

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    Tuesday March 11, 2014
    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). 


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    Will the Canada - South Korea Trade Agreement Include Copyright Term Extension?

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    Monday March 10, 2014
    Prime Minister Stephen Harper is currently in South Korea reportedly to finalize agreement on the Canada - South Korea trade agreement. The proposed deal has been the subject of a decade of negotiation with opposition from the auto industry resulting in significant delays. While the focal point of the agreement will be on tariff issues involving the automotive and agricultural sectors, the deal will include an intellectual property chapter. The IP issues have not received any attention (the entire agreement remains secret so discussion has been generally limited), but it is possible that it will require Canada to extend the term of copyright.

    An initial Canadian environmental assessment of the agreement suggested that the IP chapter would simply reaffirm existing IP obligations. If the agreement is limited to reaffirming existing commitments, copyright term will not be touched since Canada meets the international requirement of life of the author plus 50 years.  However, South Korea's recent trade deals with both the European Union and Australia feature a minimum copyright term of life of the author plus 70 years (the Australian deal also includes a requirement for "measures to curtail repeated copyright infringement on the Internet"). Whether the Canadian deal contains a similar provision will be worth monitoring, both for the impact on Canadian copyright law and for the international trade implications such as the Trans Pacific Partnership that is currently under negotiation.
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    The Day We Fight Back Against Mass Internet Surveillance: What Canadians Can Do

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    Tuesday February 11, 2014
    Over the past eight months, the steady stream of Snowden leaks have revealed the existence of a massive surveillance infrastructure intent on capturing seemingly all communications, including metadata on phone calls, Internet searches, and other online activity. While much of the surveillance originates with the U.S. NSA, the leaks suggest that Canada plays a key role in many initiatives and that Canadians' data is undoubtedly captured in the process. Indeed, in recent months, we've learned about:
    Moreover, we know that U.S. law provides fewer protections to personal information of non-U.S. citizens, suggesting that Canadian data residing in cloud-based servers in the U.S. are particularly vulnerable. Meanwhile, the Canadian legal rules remain largely shrouded in secrecy, with officials maintaining that programs fall within the law despite the obvious privacy interests in metadata and statutory restrictions on domestic surveillance.

    I recently posted on a discussion I had last summer with a senior government official on the Snowden leaks. The official remarked that in the wake of the Snowden revelations the political risk did not lie with surveillance itself, since most Canadians basically trusted their government and intelligence agencies to avoid misuse. Rather, the real concern was with being caught lying about the surveillance activities. This person was of the view that Canadians would accept surveillance, but they would not accept lying about surveillance programs.

    Today is the day that Canadians can send a message that this official is wrong. The Day We Fight Back Against Mass Surveillance is a global effort to galvanize people around the world to speak out against ubiquitous surveillance. Canadians can learn more here, but the key ask is to contact your Member of Parliament. If you are concerned with widespread surveillance in Canada, take a couple of moments to send an email or letter (no stamp required) to your MP and let them know how you feel (alternatively, you can fill out the form at this site). In addition, you can sign onto a global petition supported by hundreds of groups around the world. 

    I've written about the need for changes here and many others - including Interim Privacy Commissioner Chantal Bernier, Kent Roach, Wesley Wark, Ron Diebert, David Fraser, Ontario Privacy Commissioner Ann Cavoukian and Avner Levin, Craig Forcese, and Lisa Austin - have highlighted other potential changes. There are no shortage of ideas for reform. What we need now are Canadians to speak out to demand an open review and reform of Canadian surveillance law and policy.
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    The Shameful Canadian Silence on Surveillance

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    Friday January 17, 2014
    Later this morning, U.S. President Barack Obama will give a speech on U.S. surveillance activities in which he is expected to establish new limitations on the program. While the measures will likely fall well short of what many believe is necessary, it is notable that the surveillance issue has emerged as a significant political issue since the Snowden leaks and the U.S. government has recognized the need to address it. 

    Reaction to the Snowden leaks in the U.S. has not been limited to political responses. In recent months, Verizon and AT&T, the two U.S. telecom giants, announced plans to issue regular transparency reports on the number of law enforcement requests they receive for customer information. The telecom transparency reports come following a similar trend from leading Internet companies such as Google, Twitter, Microsoft, and Facebook

    The U.S. reaction stands in stark contrast to the situation in Canada. Canadian government officials have said little about Canadian surveillance activities, despite leaks of spying activities, cooperation with the NSA, a federal court decision that criticized the intelligence agencies for misleading the court, and a domestic metadata program which remains shrouded in secrecy. In fact, the government seems to have moved in the opposite direction, by adopting a lower threshold for warrants seeking metadata than is required for standard warrants in Bill C-13.


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