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).
- reflects Canada’s regime as updated by the 2012 Copyright Modernization Act, which brought Canada into compliance with the World Intellectual Property Organization’s two Internet treaties;
- reiterates existing aspects of Canada’s regime, including the protection of technological protection measures (technology designed to protect copyrighted material), protection of rights management information, and special measures against copyright infringers on the Internet (no change to Canada’s notice and notice regime, which defines the responsibility of Internet service providers in respect of copyrighted material on their networks).
The specific reference to notice-and-notice is important since it confirms no takedown requirements nor three-strikes rules. The specific measures against copyright infringers may be interpreted as Canada’s enabler provision that targets websites that facilitate infringement. Moreover, the references to reflecting Canada’s regime indicates that there is no copyright term extension or other substantive changes.
The approach is much the same on both trademark and patent. On trademark, the summary states the agreement:
reflects existing aspects of Canada’s trademarks regime, including those pertaining to trademark registration, application and cancellation as well as to well-known trademarks.
while on patents, it states the agreement is:
in line with Canada’s current regime, including criteria regarding patentability and exclusions from patentability; no new commitments in the area of pharmaceutical patents.
The IP approach is notable for several reasons. First, the agreement confirms that neither Canada nor South Korea view increased IP protections as a trade priority. This is not particularly surprising, but it is important within the context of the Trans Pacific Partnership negotiations. Canada is clearly committed to its current rules and seems likely to continue to oppose U.S. and Australian efforts to increase protections in the TPP.
Second, the decision to maintain existing domestic laws without pressuring the other country to conform to its approach illustrates that claims of the necessity for harmonized IP rules in trade agreement are simply untrue. A far more appropriate approach is to require consistency with international obligations.
Third, the Canada – South Korea agreement may provide a model for many other countries that wish to include intellectual property provisions in their trade agreements but are content to require each party to meet international standards rather than the domestic rules of one of the parties. The U.S. and E.U. approach has been to export their rules to other countries, but Canada and South Korea have demonstrated that respect for domestic choices and compliance international obligations is a better alternative.