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EU Demands for Trade Deal Would Reshape Canadian IP Law

By Michael Geist

More than 20 years ago, Canada negotiated a free trade agreement with the United States that attracted enormous public attention.  The first FTA - to be followed a few years later by the North American Free Trade Agreement that brought Mexico into the mix - played a pivotal role in a national election and ultimately resulted in dramatic changes to the economy and Canadian law.

My weekly technology law column (Toronto Star version, homepage version) notes that earlier this year, Canada and the European Union announced plans to negotiate a Comprehensive Economic and Trade Agreement (CETA), possibly the biggest Canadian trade negotiations since NAFTA.  The first round of talks took place in Ottawa in October, yet the treaty has generated practically no public scrutiny. That may change following the leak last week of the European Union's proposed intellectual property chapter.


Simply put, the EU demands target the entire Canadian economy.  They include increased patent protection for pharmaceutical companies, heightened support for famous trademarks, and new rules for industrial designs.  The EU is also keen on restrictions on the use of geographic indications, which would limit the ability of Canadian wine and cheese makers to use such words as champagne or parmesan.

The EU has emphasized its desire that Canada comply with a series of treaties that have not been signed or ratified.  Demands focus on Canadian accession to the Hague System for the International Registration of Industrial Designs, implementation of the World Intellectual Property Organization Internet treaties, and compliance with both the Trademark Law Treaty and the Patent Law Treaty.

The EU draft indicates the treaty would also dramatically reshape Canadian copyright law.  Indeed, when combined with the Anti-Counterfeiting Trade Agreement (the other ongoing secret negotiation), the two agreements would render Canadian copyright law virtually unrecognizable.  The notion of a "made-in-Canada" approach promoted by Industry Minister Tony Clement - already under threat from ACTA - would be lost entirely, replaced by a made-in-Washington-and-Brussels law.

The leaked document includes the following demands:

Copyright term extension.  The current term of copyright protection in Canada is life of the author plus 50 years.  This is consistent with the term requirements under the international law.  The EU is demanding that Canada add an additional 20 years by making the term life plus 70 years.

Digital lock provisions. The EU is demanding that Canada implement digital lock provisions that include a ban on the distribution of circumvention devices. There is no such requirement in the WIPO Internet treaties.

Enforcement provisions.  The EU is demanding that Canada establish a host of new enforcement provisions including measures to preserve evidence, ordering alleged infringers to disclose information on a wide range of issues, mandating disclosure of banking information in commercial infringement cases, as well as allowing for injunctive relief and destruction of goods.  There is also a full section on new border measures requirements.

Resale rights.  The EU is demanding that Canada implement a new resale right that would provide artists with a royalty based on any resales of their works subsequent to the first sale.  This new right would mean that paintings, sculptures, and other works would carry an additional royalty fee for any sales after the creator has sold their work.

While the leaked document may only represent the starting European position, there is little doubt there will be enormous pressure on Canadian negotiators to cave on the IP provision in return for gains in other areas.  CETA may not have attracted much attention to date, but its long-term implications could ultimately exceed the first Canada/U.S. FTA.

Full post as published by Michael Geist on December 21, 2009 (boomark / email).