The leak of the Trans Pacific Partnership intellectual property chapter generated global coverage as full access to the proposed text provided a wake-up call on U.S. demands and the clear opposition from many TPP countries. My first post highlighted Canada’s opposition to many U.S. proposals, but nowhere is that more evident than in the section on Internet service provider liability. In fact, ISP liability in the TPP is shaping up to be a battle between Canada and the U.S., with countries lining up either in favour of a general notification obligation (Canada) or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking (U.S.).
Cooperation in the Pacific Rim by Jakob Polacsek, World Economic Forum (CC BY-NC-SA 2.0) https://www.flickr.com/photos/worldeconomicforum/48179628441
Digital Trade
The Trans Pacific Partnership IP Chapter Leaks: Canada Pushing Back Against Draconian U.S. Demands
Wikileaks released an updated version of the secret Trans Pacific Partnership intellectual property chapter this morning (background on the TPP from my appearance before the House of Commons Standing Committee on International Trade earlier this year). The leaked text, which runs 95 pages in length and is current to August 2013, provides a detailed look not only at the chapter – it includes the full text – but also the specific positions being taken by all negotiating countries.
From a Canadian perspective, there is good news and bad news. The good news is that Canada is pushing back against many U.S. demands by promoting provisions that are consistent with current Canadian law. Canada is often joined by New Zealand, Malaysia, Mexico, Chile, Vietnam, Peru, and Brunei Darussalam. Japan and Singapore are part of this same group on many issues. Interestingly, Canada has also promoted Canadian-specific solutions on many issues. The bad news is that the U.S. – often joined by Australia – is demanding that Canada rollback its recent copyright reform legislation with a long list of draconian proposals.
It is instructive to see how different the objectives of the U.S. are on intellectual property when compared to virtually all other countries. With the exception of the U.S., Japan, and Australia, all other TPP countries have proposed an objectives article (Article QQ.A.2) that references the need for balance, promotion of the public domain, protection of public health, and measures to ensure that IP rights themselves do not become barriers to trade. The opposition to these objective by the U.S. and Japan (Australia has not taken a position) speaks volumes about their goals for the TPP.
Fake Feta: Digging into the Intellectual Property Details of the Canada – EU Trade Agreement
The Canadian government released a technical summary of the Canada – EU trade agreement (CETA) yesterday, which provides further details on the draft agreement (tabling a summary of the treaty is a strange exercise and the government needs to release the full text). Within the summary, there are some further details on the intellectual property issues that were not highlighted in the initial releases.
First, while the emphasis on cheese and the dairy industry has focused on increasing the amount of European cheese that can be sold in Canada, the agreement also contains some notable new restrictions on the sale and marketing of cheese in Canada more generally. Under the umbrella of geographic indications protections, Canada has agreed to new limitations on several well known cheeses including asiago, feta, fontina, gorgonzola, and munster. Existing Canadian producers can continue to use these names, but that’s it – any future cheese makers will need to qualify the title by using words such as “imitation” or “style”. This is a significant concession that effectively gives rights to existing producers on what many consumers would view as generic names.
EU Assures that CETA Does Not Contain ACTA Copyright Rules
While the Canadian government provided few details on the copyright rules in the Canada – EU Trade Agreement (largely emphasizing that CETA is consistent with recent copyright reforms), the European Commission posted an updated fact sheet on the issue. The European document focuses on the Anti-Counterfeiting Trade Agreement, providing assurances that CETA does not contain ACTA provisions with respect to Internet providers or criminal copyright provisions. The document, which appears to be a re-release of a year-old document, states:
CETA Reached “In Principle”, Part Four: Pharma Gets Patent Extension Despite Declining R&D in Canada
As noted in another post on the CETA intellectual property provisions, one of the key elements in the deal from a European perspective was patent term restoration, which effectively allows the large pharmaceutical companies to extend the term of their patents (additional posts on the need to release the draft text and the telecom and e-commerce provisions). The change will delay the entry of generic alternatives and, as acknowledged by Prime Minister Stephen Harper, will raise health care costs across the country (estimates run into the billions). In fact, the Ontario government has already indicated that it may seek compensation (or “mitigate the impact”) for the additional costs.
Ironically, the CETA deal comes just as the government’s Patented Medicines Prices Review Board issued its annual report that shows that the major pharmaceutical companies spending to sales ratio continues a decade-long decline, hitting its lowest level since the last time the Canadian government caved to pressure for patent reforms. According to the PMPRB released data (which is gathered from the companies themselves), the R&D-to-sales ratio for members of Rx&D (the lead pharma lobby) was 6.6% in 2012, down from 6.7% in 2012. The Rx&D ratio has now been less than 10% for the past ten consecutive years and is approaching its lowest level since tracking began in 1988. From a global perspective, Canada fares very poorly, ranking ahead of only Italy with countries such as France, Germany, Sweden, Switzerland, the U.K., and U.S. all seeing greater expenditures.
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