Canada, trade and intellectual property

“Today, 13 November 2013, WikiLeaks released the secret negotiated draft text for the entire TPP (Trans-Pacific Partnership) Intellectual Property Rights Chapter. The TPP is the largest-ever economic treaty, encompassing nations representing more than 40 per cent of the world’s GDP.”

And with that statement, posted on its website at 9:55 a.m., Wikileaks publicly released the intellectual property rights chapter of the free trade agreement being negotiated between a dozen countries, including Canada, the United States, Japan, and Australia.

While the 90-page document just outlines the positions of the negotiating parties, its effect was explosive nevertheless, especially in some Canadian circles.

“If the U.S. is successful in pressuring other countries to meet its demands, Canada would be required to radically overhaul its current law, reversing course on many of the rules the government recently enacted as part of its long-awaited copyright reform package,” says Michael Geist, a University of Ottawa law professor and expert in internet and e-commerce law.

Among the concerns raised by Geist and other observers of the trade negotiations are lengthier protections for copyright; stricter rules for online copyright infringement; and reinforced patent protection for brand-name drugmakers.

For the most part Canada has taken issue with U.S. positions.  “Certainly it is encouraging that at least as of two weeks ago, Canada seems to be in the camp that was pushing back against some of the more extreme proposals from big pharma and the U.S. trade representatives,” says Richard Elliott, executive director of the Canadian HIV/ AIDS Legal Network.

“Whether Canada and other countries will stand that ground… is very much an open question and it remains to be seen,” he adds.

Of course, not everyone had the same reaction to this round of WikiLeaks.  The Canadian Chamber of Commerce, for one, is pushing for the government to be more ambitious in an effort to provide better copyright, patent, and trademark protection.

“Too often we are seen as the opponents of IP in these deals. And so we have been asking the government to work in a constructive way with countries like the United States and Australia,” says Cam Vidler, Director of International Policy for the CCC.

Vidler cautions the public, pressure groups, and legal professionals against drawing hasty conclusions about negotiating positions, which can change on a dime.

“What ends up coming into play at the end of the day usually isn’t necessarily at the extreme ends of the negotiations when they start,” says Angela Furlanetto, a partner at Dimock Stratton LLP in Toronto and Chair of the CBA’s National Intellectual Property Law Section. “But I certainly expect to see some change,” she says.

Like her colleagues, Furlanetto will have to adjust to these changes, as was the case with the C-11 changes a few months ago, and the changes to the free trade agreement between Canada and the European Union, if it ever comes into force.

To David Christopher, spokesman for OpenMedia.ca, a Canadian organization committed to the protection of an open and affordable internet, “the extent of public interest in this is really remarkable.”

“I would not have thought maybe a year ago that you would get so many people speaking up and expressing concern about copyright laws. It really shows the depth of concerns people have and their desire to keep the internet free and open and accessible to everybody.”

Draft IP proposals

Here are a few of the proposals contained in the draft chapter on intellectual property rights that could have an impact on Canadian intellectual property law — and the lives of Canadians:

1. Copyright extended from 50 to 70 years

In Canada, after an author dies, his work is protected for another 50 years. In the U.S. that period is 70 years. Negotiators for the U.S. and Australia are pushing for the TPP to adopt the latter approach. Michael Geist worries that the extension would hinder access to literary works on this side of the border. On his blog (michaelgeist.ca), he drew up a list of some 20 Canadian authors whose works will be coming into the public domain in the next 20 years. Examples include Marshall McLuhan, Gabrielle Roy, and historian Donald Creighton. The extension would also go against the hard-fought compromise reached in Canada’s recent copyright reform, says Cam Vidler, Director of International Policy at the Canadian Chamber of Commerce. “That said, if you actually look at how fundamental a change that is, the complaints that people raise about, you know, the schools won’t be able to teach classics anymore… That’s obviously not the case. There are a lot of classics that can be taught and a change of 20 years won’t make a fundamental difference,” he comments.

2. A “notice and takedown” system

When Canada reformed its copyright laws less than two years ago, it opted for a “notice-and-notice” system as a mechanism for countering online copyright infringement. Under this system, an internet service provider, at the request of a copyright owner, must notify a user of a possible infringement of those rights. The “notice-and-takedown” system, favoured by the U.S. in the framework of the TPP negotiations, goes further. It requires the provider to remove content that is alleged to represent a copyright infringement. “If there are repeated allegations of infringement [against people], they would face the possibility of losing access to the internet,” says Geist. Advocates of an open web, such as OpenMedia.ca, are up in arms: “We’re concerned that this basically amounts to an internet censorship plan,” says OpenMedia.ca spokesman David Christopher. “That’s an expensive thing to force internet providers to do and the cost of that would be passed on to costumers,” he adds.

3. More protection for brand-name drugs

Groups like Doctors Without Borders and the Canadian HIV/AIDS Legal Network are worried about the loss of access to drugs that would result from some of the proposals in the draft agreement leaked in November, especially in developing countries. In particular, they worry about American pressure to extend the term of patent protection for brand-name drugs. This would postpone the entry in the market of cheaper generic drugs. “That means that a lot of people then die, because they don’t get medicines, because the prices are too out of reach, they are too costly,” concludes Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network. Meanwhile, Cam Vidler of the Canadian Chamber of Commerce argues for better protection for brand-name drugs. “Generally, there is a trade-off between short-term cheap access to medicines and […] the long-term development to medicines that address key diseases affecting people,” he says.