Prime Minister Stephen Harper arrived in China today for a high profile visit
aimed at improving the Canada- China economic ties. Many have noted the change in tone from the Canadian government on China on rights issues, but the intellectual property story is worth noting here as well. Unlike a U.S. visit, which is likely to place IP issues at the very top of the list, the Canadian visit is unlikely to emphasize the issue. Indeed, Canada would do well to consider shifting its approach to China on intellectual property.
While China-based piracy is unquestionable a concern, Canada has too often used the issue to curry favour with the U.S. at the expense of developing the China relationship. In recent years, our support for the Anti-Counterfeiting Trade Agreement (which deliberately excluded China) and now the Trans Pacific Partnership (which also excludes China) does little to help relations. China could be a strategic ally on global IP issues as both countries face significant external pressure for reform. While compliance with international rules should be the starting point for any dialogue, focusing on the flexibility that exists at international law to address domestic concerns is in both our interests.
The biggest Canadian blunder was the decision to join a U.S. complaint against China at the World Trade Organization in 2007 alleging that China’s domestic laws, border measures, and criminal penalties for intellectual property violations did not comply with its international treaty obligations. The case was a big loss. China was required to amend parts of its copyright law but on the big issues – border measures and IP enforcement – almost all of the contested laws were upheld as valid.
More interesting are the background documents that demonstrate that the Canadian government was unable to muster credible evidence of harm among Canadian companies.
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Just as the G8-G20 meetings conclude in Muskoka and Toronto, another round of negotiations on the controversial Anti-Counterfeiting Trade Agreement resumes in Switzerland today. In the aftermath of the last round of discussions in New Zealand, a draft version of the ACTA text was publicly released, temporarily quieting criticism about the lack of transparency associated with an agreement that currently touches on all forms of intellectual property, including patents, trademark, and copyright.
While the transparency concerns are no longer in the spotlight, my weekly technology law column (Toronto Star version, homepage version) notes that mounting opposition to the agreement from the developing world, particularly powerhouse economies such as India, China, and Brazil, is attracting considerable attention. The public opposition from those countries – India has threatened to establish a coalition of countries against the treaty – dramatically raise the political stakes and place Canada between a proverbial rock and hard place, given its close ties to the U.S. and ambition to increase economic ties with India and China.
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I attended a workshop on ACTA in Geneva yesterday that included government attendees from China, India, Pakistan, and other leading developing countries. Some key takeaways: China expressed serious concerns with ACTA as upsetting the IP balance and harming the interests of the developing world. It argued that this may provide […]
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The World Trade Organization has posted further information on last week's Council meeting where India, China, and other developing countries raised concerns with the Anti-Counterfeiting Trade Agreement. The report notes the following:
Briefly, China’s and India’s lengthy statements argued that ACTA and other agreements could:
- Conflict with TRIPS Agreement (a reference to TRIPS Art.1.1) and other WTO agreements, and cause legal uncertainty
- Undermine the balance of rights, obligations and flexibilities that were carefully negotiated in the various WTO agreements
- Distort trade or create trade barriers, and disrupt goods in transit or transhipment
- Undermine flexibilities built into TRIPS (such as for public health, and trade in generic medicines)
- Undermine governments’ freedom to allocate resources on intellectual property by forcing them to focus on enforcement
- Set a precedent that would require regional and other agreements to follow suit. (One example cited was negotiations involving CARIFORUM, the group of Caribbean states. However, a delegation representing CARIFORUM said it understood the concerns but denied that CARIFORUM would have to apply ACTA’s provisions.)
They also argued that the focus on enforcement did not take into account a country’s level of development. A number of developing countries broadly supported the concern.
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IP Watch reports on plans by China and India to raise concerns about ACTA at the World Trade Organization this week.
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