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CONTRIBUTION · 30th March 2010
Michael Geist
Late last year, a draft of the European Union proposal for the intellectual property chapter of the Canada - EU Comprehensive Economic Trade Agreement leaked online. The leak revealed that the EU was seeking some significant changes to Canadian IP laws. Negotiations have continued and I have now received an updated copy of the draft chapter, complete with proposals from both the EU and Canada. The breadth of the demands are stunning - the EU is demanding nothing less than a complete overhaul of Canadian IP laws including copyright, trademark, databases, patent, geographic indications, and even plant variety rights.

While there are some Canadian requests - for example, Canada plays Hollywood North by asking the EU to introduce an anti-camcording provision - virtually all the changes would require Canadian reforms. In fact, while the Anti-Counterfeiting Trade Agreement garners the bulk of the attention, CETA would actually involve far more domestic change. In some sections, the EU simply takes its own directives and incorporates them into the treaty. For example, provisions on the liability of ISPs is taken directly from EU law, including the use of terms such as "information society service" - something that is defined under EU law but is meaningless in Canada.

Notably, the draft includes many new rights for broadcasters. These rights form part of a proposed Broadcast Treaty at WIPO that has failed to achieve consensus. The EU is seeking to build support for the treaty by requiring Canada to implement many new provisions that would give broadcasters a host of new rights and force public places to pay additional fees for carry broadcasts.

Given the magnitude of the proposed changes, the price of a trade agreement is clear. The EU is effectively demanding that Canada surrender its sovereignty over intellectual property law and policy. Some of the proposed changes in the Intellectual Property chapter (Chapter 20) of CETA include:

Copyright
The EU demands include:
*Compliance with WIPO Internet treaties
*Extension of the term of copyright to life of the author plus 70 years (Canadian law currently at life plus 50 years)
*Additional copyright term extensions for audiovisual works, anonymous works, and unpublished works
*Term of copyright for broadcasts for at least 50 years (Canada wants to limit to wireless broadcasts, while EU wants it to cover everything)
*Greater transparency for copyright collectives
*New resale right for works of art
*New exclusive right of fixation for broadcasts (Canada wants to limit to wireless broadcasts, while EU wants it to cover everything)
*New exclusive right for broadcasters for retransmission in public places (ie. new fees for bars and other public places)
*New distribution right
*Extension of the reproduction right to performers and broadcasters
*Extension of the communications right for performers, phonogram producers, film producers, and broadcasters.
*Anti-circumvention rules including provisions against devices that can be used to circumvent digital locks
*Protection for rights management information

These are all EU demands. The only Canadian request is a yet to be specified provision on camcording.

Enforcement of IP Rights
The enforcement IP rights section contains literally pages of European law that the EU wants incorporated into Canada. It addresses everything from ISP liability to injunctions to border measures to damages provisions. The EU even wants new criminal sanctions added, but has yet to specify what those should be. There are no Canadian requests here. Rather, the EU wants Canada to discard its approach to the enforcement of intellectual property almost completely and simply adopt the EU model.

Trademarks
The EU demands include:
*Canada to comply with the Trademark Law Treaty (Canada wants only to comply with the Singapore Treaty on the Law of Trademarks and to make reasonable efforts to accede to Madrid Agreement on international registration)
*Canada to change its procedure for registration of trademarks
*Canada to provide protections for well-known trademarks

Geographic Indications
Canada and the EU propose competing approaches for extending protections for geographic indications. This applies to a wide range of products including agricultural products, wine, spirit drinks, and foodstuffs. The EU's plan is far more extensive with provisions on protection, enforcement, rights of use, and scope of protection. In fact, the EU even wants to create a Joint Committee on geographic indications charged with monitoring the rules between Canada and the EU.

Designs
The EU demands include:
*Canada to accede to the Hague Agreement Concerning the International Registration of Industrial Designs
*New protection for designs
*New rights for registration of designs
*Term of protection for designs of at least five years

Patents
The EU demands include:
*Canada to comply with Articles 1 - 16 of the Patent Law Treaty (Canada wants to "endeavour to accede" to the treaty)
*Further protection for medicinal or plant protection
*Additional protection blocking disclosure of pharmaceutical data that is submitted to regulatory authorities to third parties
*New data protection for plant protection

Trade Secrets
Canada demands that the EU adopt the Canadian protection for trade secrets.


To read more articles by this author visit his website at http://www.michaelgeist.ca/