Harper Government Highlights Widespread Benefits to British Columbia of Historic Canada-EU Trade Agreement by DFATD | MAECD (CC BY-NC-ND 2.0) https://flic.kr/p/hnn8jC
The Trouble with the TPP series now shifts to patent law reforms and the likely costs to the health care system (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry). The TPP patent provision changes are very significant since they lock Canada into extending the term of patent protection, which will ultimately increase health care costs. Moreover, global organizations such Doctors Without Borders has warned that the agreement will raise the price of medicines for millions of people, particularly in the developing world.
The Conservative government tried to downplay the impact of patent law changes in the TPP, arguing that the agreement is consistent with current law or is “in line with outcomes secured in the Canada – EU Comprehensive Trade and Economic Agreement (CETA)”. The reference to CETA, which comes from the government’s TPP IP summary, represents a neat of sleight of hand.
Last month, there were several Canadian media reports on how the work of Ian Fleming, the creator of James Bond, had entered the public domain. While this was oddly described as a “copyright quirk”, it was no quirk. The term of copyright in Canada is presently life of the author plus an additional 50 years, a term that meets the international standard set by the Berne Convention. The issue of extending the term of copyright was discussed during the 2009 national copyright consultation, but the government wisely decided against it. Further, the European Union initially demanded that Canada extend the term of copyright in the Canada – EU Trade Agreement, but that too was effectively rebuffed.
If new reports out of Japan are correct, however, Canada may have caved to U.S. pressure to extend copyright term. The U.S. extended its term to life plus 70 years in 1998 in response to demands from the Disney Corporation (Mickey was headed to the public domain) and has since pressured other countries to match. NHK reports that a deal on copyright term has been reached within the TPP with countries agreeing to a life plus 70 term. Alongside Japan, Malaysia, New Zealand, and Vietnam (the TPP countries that adhere to the Berne standard), it appears that Canada has dropped its opposition to the change.
In late December 2009, Wikileaks, the website that publishes secret government information, posted a copy of the draft intellectual property chapter of the Canada – European Trade Agreement (CETA). The CETA deal was still years from completion, but the leaked document revealed that the European Union envisioned using the agreement to mandate a massive overhaul of Canadian law.
The leak generated concern among many copyright watchers, but when a German television station leaked the final text of the agreement last week, it contained rules that largely reflect a “made-in-Canada” approach. Why the near-complete reversal in approach on one of the most contentious aspects of a 500 page treaty?
My weekly technology law column (Toronto Star version, homepage version) notes the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.
Did Canada Cave on the Pharmaceutical Patent ISDS Issue in CETA?: Still No Text, But Official Comments Suggests It Did
For the second time in less than a year, Canada and the EU have announced that they reached agreement on the Canada – EU Trade Agreement. Back in October 2013, there was an announcement of an agreement “in principle”. The announcement did not include a release of the text and the parties said there was still further work to be done on drafting and legal analysis. Yesterday, brought another announcement of an agreement on the text. Once again, the announcement did not include a release of the text and the parties said there was still further work to be done on legal review and translation into 23 languages.
Given the agreement is 1,500 pages, the additional work is expected to take a considerable amount of time. While government ministers claimed that CETA “is ready for debate and ratification”, the reality is that there cannot be a meaningful, informed debate without the actual text. Releasing it for full study and comment is the essential next step.
Analysis without the text is difficult, however, the combination of prior leaks and media reports indicate that Canada caved on its concerns regarding the potential replication of Eli Lilly-style pharmaceutical patent lawsuits.
In the early 1990s, pharmaceutical giant Eli Lilly applied for patent protection in Canada for two chemical compounds, olanzapine and atomoxetine. The company had already obtained patents over the compounds, but asserted that it had evidence to support new uses for the compounds that merited further protection. The Canadian patent office granted the patents based on the content in the applications, but they remained subject to challenge.
Both patents ultimately were challenged on the grounds that there was insufficient evidence at the time of the applications to support the company’s claims. The Federal Court of Canada agreed, invalidating both patents. Eli Lilly proceeded to appeal the decision to the Federal Court of Appeal and later to the Supreme Court of Canada. The company lost the appeals, as the courts upheld the decision to invalidate the patents.
My weekly technology law column (Toronto Star version, homepage version) notes that under most circumstances, that would conclude the legal story as nine Canadian judges reviewed Eli Lilly’s patent applications and ruled that they failed to meet the standards for patentability. Yet in June 2013, the company served notice that it planned to file a complaint under the North American Free Trade Agreement claiming that in light of the decisions, Canada is not compliant with its patent law obligations under the treaty. As compensation, Eli Lilly is now seeking $500 million in damages.