Monday July 09, 2012
in the Toronto Star on July 8, 2012 as Controversial Copyright
Rules Threaten Canada - European Trade Deal
In October 2007, several leading economies, including the U.S.,
European Union, and Canada, announced plans to negotiate the
Anti-Counterfeiting Trade Agreement (ACTA). Despite being shrouded
in secrecy, ACTA details slowly began to emerge, including
revelations that lobby groups had been granted privileged access to
the draft text as well as leaks that indicated that individual
Internet users could be a prime target of new enforcement measures.
The ACTA talks concluded in 2010, but the controversy over the deal
continued to grow. Earlier this year, thousands took the streets in
Europe to protest against an agreement that was negotiated in secret
and that raised serious concerns about privacy and free speech.
With public pressure mounting, the European Parliament voted
overwhelmingly last week to reject ACTA, striking a major blow to
the hopes of supporters who envisioned a landmark agreement that
would set a new standard for intellectual property rights
The European Commission, which negotiates trade deals such as ACTA
on behalf of the European Union, has vowed to revive the badly
damaged agreement. Its most high-profile move has been to ask the
European Court of Justice to rule on ACTA's compatibility with
fundamental European freedoms with the hope that a favourable ruling
could allow the European Parliament to reconsider the issue.
While the court referral has attracted the lion share of attention,
there is an alternate secret strategy in which Canada plays a key
role. According to recently
leaked documents, the EU plans to use the Canada - EU Trade
Agreement (CETA), which is nearing its final stages of negotiation,
as a backdoor mechanism to implement the ACTA provisions.
IP chapter has already attracted attention due to EU
pharmaceutical patent demands that could add billions to provincial
health care costs, but the bigger story may be that the same chapter
features a word-for-word replica of ACTA. According to the leaked
document, dated February 2012, Canada and the EU have already agreed
to incorporate many of the ACTA enforcement provisions into CETA,
including the rules on general obligations on enforcement,
preserving evidence, damages, injunctions, and border measure rules.
One of these provisions even specifically references ACTA.
The EU has also proposed incorporating ACTA's criminal enforcement
and co-operation chapters into CETA. The criminal provisions were
the target of European Parliament criticism for their lack of
proportionality and uncertain application.
Canada has similarly pushed for the inclusion of ACTA provisions,
proposing identical digital lock rules as well as ACTA-style
Internet service provider provisions that raised privacy concerns
from the European Data Protection Supervisor. In fact, Canada would
like to extend ACTA by mandating an anti-camcording provision (a
similar provision is currently voluntary in ACTA).
The European Commission strategy appears to be to use CETA as the
new ACTA, burying its provisions in a broader Canadian trade
agreement with the hope that the European Parliament accepts the
same provisions it just rejected with the ACTA framework. If
successful, it would likely then argue that ACTA poses no new
concerns since the same rules were approved within the Canadian
The backdoor ACTA approach creates enormous risks for Canada's trade
ambitions. Given the huge anti-ACTA movement, the Canada - EU trade
deal could face widespread European opposition with CETA becoming
swept up in similar protests.
With anti-ACTA sentiment spreading across Europe, Canada should push
to remove the intellectual property chapter from CETA
altogether. The move would not be unprecedented. Many of
Canada's free trade agreements feature only limited IP provisions
and last year a Canadian parliamentary committee recommended that
"domestic copyright policies are not part of any present or future
Meanwhile, the U.S. and EU recently announced their own plans to
negotiate a trade deal but agreed to keep intellectual property
issues out of the talks. If CETA becomes known as ACTA II, the
future of the Canada - EU trade deal may hinge on adopting a similar
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at firstname.lastname@example.org or online at www.michaelgeist.ca.
TagsShareMonday July 09, 2012
Thursday June 21, 2012
The large international pharmaceutical companies continue their campaign
for new patent rules that the provinces fear will cost taxpayers
billions of dollars in additional costs. The lead lobby for the
companies, RxD, brought former Prime Minister Brian Mulroney to Ottawa
earlier this month to praise
from the 1980s that he argued have worked well for Canada. Yet those
reforms came with a condition: in return for reforms that granted the
companies far stronger patent rights, RxD companies promised to
increase their spending on research and development in Canada so that
it would rise to 10% of total sales by 1996.
Now the same companies are lobbying relentlessly for a new round of
patent reforms that they say will lead to further growth in research
and development. However, a new
from government's Patented Medicines Prices Review Board shows that RxD
spending to sales ratio continues a decade-long decline, hitting its
lowest level since the 1987 reforms.
TagsShareThursday June 21, 2012
Friday June 08, 2012
The Globe has a terrific
today that notes the failure of big pharmaceutical companies to live up
to their research and development commitments. It notes that those same
companies are now demanding further IP reforms as part of the Canada -
EU Trade Agreement.
TagsShareFriday June 08, 2012
Monday June 04, 2012
The Canadian Press reports
that several provinces have written to the federal government to
express concern over the Canada - EU Trade Agreement intellectual
property provisions and the potential increase in drug costs that may
result. The provinces are demanding compensation of Canada caves to EU
demands on drug patents.
TagsShareMonday June 04, 2012