Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP

Copyright

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

Canada â€“ European Trade Deal At Risk Due To Controversial Copyright Rules

Appeared in the Toronto Star on July 8, 2012 as Controversial Copyright Rules Threaten Canada – European Trade Deal In October 2007, several leading economies, including the U.S., European Union, and Canada, announced plans to negotiate the Anti-Counterfeiting Trade Agreement (ACTA). Despite being shrouded in secrecy, ACTA details slowly began […]

July 9, 2012 — 3 comments — Columns Archive

The Strategy Behind the U.S. Call For a Fair Use Provision in the TPP

The USTR took many by surprise yesterday by announcing that it will seek the inclusion of a fair use provision within the Trans Pacific Partnership agreement. It specifically stated:

For the first time in any U.S. trade agreement, the United States is proposing a new provision, consistent with the internationally-recognized “3-step test,” that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.

The USTR announcement was welcomed by civil society groups, though most noted that the specific text was not released and that it could actually create new limits on fair use. That is certainly a concern – release of the text is essential – but the attempt to export a U.S.-style fair use provision makes sense for several reasons.

July 4, 2012 — 8 comments — News

Canadian Government Announces Plans To Block Copyright Levy on MicroSD Cards

The Canadian government announced yesterday that it will use its regulation-making power to block the attempt to apply the private copying levy to MicroSD cards. I noted last November that it had this power to stop a Copyright Board hearing into the matter and that the Canadian Private Copying Collective […]

July 4, 2012 — 6 comments — News

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