Columns

ACTA Lives: How the EU & Canada Are Using CETA as Backdoor Mechanism To Revive ACTA

Last week, the European Parliament voted overwhelmingly 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 enforcement. 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 mov e 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, my weekly technology law column (Toronto Star version, homepage version) reports that 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. [UPDATE 7/10: new post on why the concern over ACTA in CETA is warranted] [UPDATE 7/11: EC responds by saying ACTA ISP provisions removed from CETA. Appears likely most of remaining provisions remain]

The CETA 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 near 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. A comparison table of ACTA and the leaked CETA chapter is posted below. 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 near 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. A comparison table of ACTA and the leaked CETA chapter is posted below.

July 9, 2012 — 44 comments — Columns

All the News That’s Fit To Post and Link: Federal Court Clears Up Legal Risks

Free Dominion is a Canadian-based political news website where users regularly post articles or link to online content for the purposes of political debate. On January 10, 2008, an eleven-paragraph column by National Post columnist Jonathan Kay was posted to the site. When the Post complained in April 2010, the column was replaced with shorter excerpt that included the same headline along with 3 full paragraphs and one half-paragraph. A month later, a site user posted a link to a photograph that was posted on the photographer’s website. The photograph itself was not posted as only a link was used.

These postings and links were not particularly unusual – similar actions occur millions of times every day – yet soon after, Free Dominion was hit with a copyright infringement lawsuit claiming the posting and the link violated the Post and photographer’s copyright.

My weekly technology law column (Toronto Star version, homepage version) notes that last week, the Federal Court of Canada issued its ruling, dismissing both claims (along with a claim over the posting of a second article for which the limitation period to sue had expired). The decision has enormous implications for Internet users, news organizations, and free speech in Canada as it removes much of the legal uncertainty surrounding sharing information online.

July 3, 2012 — 10 comments — Columns

What’s Behind Canada’s Entry to the Trans-Pacific Partnership Talks?

Last week, U.S. President Barack Obama formally extended an invitation to Canada to join the Trans Pacific Partnership negotiations, a proposed trade deal that includes the U.S., Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam (Mexico was also added last week). Supporters have lauded the TPP as potentially the world’s most important trade pact and the Canadian government spent months crossing the globe to lobby for an invitation.

Yet dig beneath the heady promises and my weekly technology law column (homepage version, Toronto Star version) notes that the benefits for Canada are hard to identify. The price of admission was very steep – Canada appears to have agreed to conditions that grant it second-tier status – and the economic benefits from improved access to TPP economies are likely to be relatively minor since we already have free trade agreements with four of the ten participants.

Given those conditions, why aggressively pursue entry into the negotiations?

June 28, 2012 — 10 comments — Columns

Internet Domain Name Land Grab More Than Just “Fools Gold”

Last week, the Internet Corporation for Assigned Names and Numbers (ICANN), the California-based non-profit corporation charged with the principal responsibility for maintaining the Internet’s domain name system, revealed that it has received nearly 2,000 applications for new domain name extensions. While many applications may be abandoned or face objections that stall their approval, my weekly technology law column (Toronto Star version, homepage version) notes it seems certain that there will be hundreds of new domain name extensions in the not-too-distant future, a change that will fundamentally reshape the way we think about domain names.

June 21, 2012 — 6 comments — Columns

UN Internet Takeover Rumours Mask Bigger Governance Shortcomings

In recent months the Internet has been buzzing about the prospect of a United Nations “takeover” of the Internet, including responsibility for governance of the domain name system. The concern hit a fever pitch late last month when the U.S. Congress held hearings on the issue. A steady stream of technology companies and consumer groups expressed fears with potential U.N. and foreign government involvement and members of Congress pledged to take a strong stand against the takeover.

While a U.N. takeover would indeed be cause for serious concern, my weekly technology law column (Toronto Star version, homepage version) notes the reality is far more complex and somewhat less ominous. This issue has been festering for over 15 years and is less about whether there will be efforts at governmental control and more about which government controls.

June 13, 2012 — 4 comments — Columns