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 email@example.com or online at www.michaelgeist.ca.