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    Another Step Toward the TPP: Canada Moves to Ratify Five Intellectual Property Treaties

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    Wednesday January 29, 2014
    The Canadian government quietly tabled five intellectual property treaties in the House of Commons on Monday:

    Mr. Speaker, pursuant to Standing Order 32(2) I have the honour to table, in both official languages, five treaties, entitled, one, Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989, as amended on October 3, 2006, and on November 12, 2007; two, the Singapore Treaty on the Law of Trademarks, adopted at Singapore on March 27, 2006; three, the Nice Agreement Concerning the International Classifications of Goods and Services for the Purposes of the Registration of Marks, adopted in Nice on June 15, 1957, as revised at Stockholm on July 14, 1967, and at Geneva on May 13, 1977, and amended on September 20, 1979; four, the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs adopted at Geneva on July 2, 1999; and, five, Patent Law Treaty, done at Geneva on June 1, 2000.

    I wrote about the move toward ratifying these treaties last year. The Industry Committee recommended their ratification despite the fact that no witnesses raised the issue during lengthy committee hearings. So why the recommendation? I suggested then that the decision is primarily designed to place Canada in position to ratify the Canada - EU Trade Agreement and the Trans Pacific Partnership. While neither of those trade agreements are public, leaks suggest that both include provisions requiring signatories to adopt those IP treaties. The five IP treaties, which focus largely on administrative issues, will now enter the treaty ratification process, which includes a 21-sitting day period where MPs can initiate debate.
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    The TPP IP Chapter Leaks: U.S. Demanding Overhaul of Canadian Anti-Counterfeiting Bill

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    Friday November 15, 2013
    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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    Policy Laundering Lies Behind Ottawa's Support for IP Treaties

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    Wednesday April 03, 2013
    Appeared in the Toronto Star on March 23, 2013 as Policy Laundering Lies Behind Ottawa's Support for Trade Treaties

    Last week, the House of Commons Committee on Industry, Science and Technology released its long-awaited report on intellectual property in Canada. The report was the result of months of study with witnesses representing a wide range of industries from pharmaceuticals to universities to entertainment software all making the trip to Ottawa to provide the committee with their views on what works, what doesn't, and what needs reform.

    While most of the recommendations are fairly innocuous - the committee identifies many issues for further study - one recommendation involves a classic case of policy laundering as the government has manufactured support for provisions found in two major proposed trade agreements that were not even raised by the witnesses that appeared before the committee. The report recommends:

    that the Government of Canada (in order to support Canadian businesses on the global stage and ensure the administration of Canada's IP regime is internationally compatible and streamlined) ratify the following key international agreements: the Patent Law Treaty, the Madrid Protocol and Singapore Treaty for trade- marks, and the Hague Agreement for Industrial Designs.

    The NDP picked up on the inclusion of the recommendations without any debate, discussion or actual study, noting in its minority report that

    As the Committee heard no testimony on the Patent Law Treaty, the Madrid Protocol and Singapore Treaty for trade-marks, and Hague Agreement for Industrial Designs, New Democrat committee members are surprised by the inclusion of a recommendation regarding these treaties in the majority report. The Committee should seek more information before pronouncing on such treaties.

    So why did the government representatives on the Industry committee include a recommendation to ratify four international treaties that were not discussed during the committee?

    The answer likely lies in the Canada - EU Trade Agreement and the Trans-Pacific Partnership, the two prospective trade agreements that top the government's current trade agenda. According to leaked documents, the Canada - EU Trade Agreement includes provisions that require Canada to make all reasonable efforts to comply with the Singapore Treaty and the Patent Law Treaty as well as accede to the Madrid Protocol and the Hague Agreement.

    There are similar requirements in the Trans Pacific Partnership as leaked documents indicate that it includes provisions that require countries to ratify or accede to the Madrid Protocol and the Singapore Treaty as well as make reasonable efforts to ratify or accede to the Patent Law Treaty and the Hague Agreement.

    These treaties would require significant legal reforms in Canada.  In the case of the Singapore Treaty and the Madrid Protocol, the procedures associated with Canada's trademark laws would face an overhaul, which the Intellectual Property Institute of Canada has noted would benefit only a small number of trademark holders.

    The other two treaties also create new procedural requirements, with the Hague Agreement for Industrial Designs establishing a system for registering industrial designs in multiple countries with a single application and the Patent Law Treaty seeking to harmonize formal procedures such as the requirements to obtain a filing date for a patent application, the form and content of a patent application, and representation.

    These treaties might make sense for Canada, but it is hard to know without careful study. Instead, the committee has simply recommended their ratification - and the all costs associated with doing so - without any debate or analysis. That represents a case of policy laundering designed to fabricate a record of support for the four treaties. Should Canada reach agreement on CETA or the TPP, the government will presumably use the report to claim support for the treaties that did not really exist. 

    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 mgeist@uottawa.ca or online at www.michaelgeist.ca.


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    Industry Committee Report on Intellectual Property: A Case of Policy Laundering for CETA and TPP

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    Tuesday March 19, 2013

    The Standing Committee on Industry, Science and Technology released its report on the Intellectual Property Regime in Canada yesterday. The report is the result of lengthy hearings that focused on a wide range of IP issues including patent reform, trademarks, counterfeiting, and pharmaceutical protection. While most the recommendations are fairly innocuous - the committee identifies many issues for further study - there are essentially three main legislative reform recommendations. One involves limiting the scope of official marks, which appears to be the result of comments from Dalhousie law professor Rob Currie (echoed by CIPO's Sylvain Laporte) expressing concern with governmental abuse of official marks in a way that may stifle innovation.

    The other two are particularly interesting as they set the stage for the Canada - EU Trade Agreement and the Trans-Pacific Partnership. First, the report recommends anti-counterfeiting measures similar to those required by CETA and found in Bill C-56.  Should criticism arise over Bill C-56 or CETA, the government will likely point to this report in support. 

    The second involves a classic case of policy laundering as the government has manufactured support for CETA and Trans-Pacific Partnership (TPP) provisions that were not even raised at committee.  The report recommends:


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