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CETA and Copyright: My Appearance Before the Standing Committee on International Trade

By Michael Geist

This week I was invited to appear before the Standing Committee on International Trade to discuss the ongoing negotiations of the Canada - European Union Comprehensive Trade Agreement (CETA). I've written about some concerns associated with CETA in the past (here, here, here, and here). The appearance comes just as speculation mounts that CETA is running into significant barriers with opposition from many groups and a lack of strong support at the provincial level.  While a trade deal that focuses on traditional trade barriers may make sense, the EU's effort to re-write Canadian regulatory policy on issues such as intellectual property is why the deal should be scrapped or slimmed down.  My opening comments before the committee:



Appearance before the Standing Committee on International Trade
February 15, 2011

Good morning.  My name is Michael Geist. I am a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law. I have been very active on copyright and intellectual property policy issues for many years. Last year, I edited "From Radical Extremism to Balanced Copyright: Canadian Copyright and the Digital Agenda", the largest academic study on Bill C-32 to-date, with peer reviewed contributions from 20 leading Canadian experts.

I appear before this committee today in a personal capacity representing only my own views.

The committee's recently released report on its CETA fact-finding mission focused on two primary intellectual property issues - geographical indications and pharmaceutical patents.  The committee is aware of some of the concerns associated with the EU proposals, particularly the impact on some Canadian agricultural products and on pharmaceutical pricing.

I would like to focus on another intellectual property issue within CETA - copyright. I believe to fully understand the CETA copyright provisions, they should be viewed within the broader context of copyright trade pressures on Canada. 

As committee members may be aware, Canada recently participated in the Anti-Counterfeiting Trade Agreement negotiations that concluded with a draft agreement in December 2010.  The United States and the European Union were two of the leading protagonists behind the treaty.  While few would oppose genuine efforts to deal with dangerous commercial counterfeiting, ACTA generated a global public outcry on at least two grounds. 

First, the secrecy associated with the negotiations led to widespread concern about the negotiation of an intellectual property agreement outside the conventional international forum of the World Intellectual Property Organization and with a level of secrecy normally accorded only to military documents.  Second, the substance of the agreement extended far beyond addressing commercial counterfeiting issues.  Instead, there was a concerted effort to renegotiate international intellectual property law by increasing levels of protection beyond required norms.  The final agreement raises some concerns, though many of the most problematic provisions were ultimately amended under pressure from a coalition of countries that included Canada.

I raise ACTA because many of the concerns associated with that treaty are being replicated within the CETA process, yet this time there is no coalition to argue for maintaining international flexibilities.

First, the same secrecy concerns that arose within the context of ACTA arise here.  It is true that there have been leaks of various CETA chapters - including the intellectual property chapter.  Yet commenting on leaked chapters is not a substitute for a full and open consultation that permits expert analysis and opinion on proposed treaty rules.  Waiting until we have a final or even near final text is not good enough.  We need public access for the purpose of informed commentary before the final trade-offs in the negotiations are concluded.

Second, the substantive copyright provisions raise significant concerns. In this regard, I'd like to make five brief points:

1. The inclusion of intellectual property policy marks a dramatic shift for Canadian trade negotiations, which conventionally addressed market entry, investment, and tariff issues. As Dan Ciuriak, a former deputy chief economist at the International Trade department, has noted with respect to the CETA intellectual property provisions: "the process is not a sound one. In a hotly contested area, to have fundamental business regulation made in this fashion is not sound."

2. The inclusion of copyright provisions within CETA is almost completely one-sided. With the exception of an anti-camcording provision that the EU already rejected within ACTA and is therefore unlikely to accede to here, Canada has made virtually no demands on the copyright front.  There is simply no evidence that there is anything in it for us.  Rather, the copyright provisions are blatant attempt by the Europeans to export rules to Canada that they have been otherwise unable to do via ACTA or other international agreements.

3. Some rights holders have used the CETA process as an opportunity to circumvent the domestic copyright reform process by promoting reforms within CETA that may later tie our hands for a made-in-Canada approach on copyright.  For example, the Canadian Publishers Council has provided a submission to the government calling for an extension in the term of copyright and the creation of a sui generis approach to database protection. Both reforms were soundly rejected during the 2009 copyright consultation and are not found in Bill C-32.  Yet this circumvention of the domestic policy process carries significant dangers if we are not careful.

4. The substantive proposals demanded by the EU are designed to re-work Canadian copyright law in a manner that extends well beyond international law.  Indeed, there are instances where Europe's failed international efforts are being recycled within CETA, despite the fact that Canada stood opposed in international fora. 

For example, the World Intellectual Property Organization has been negotiating a proposed Broadcasting Treaty for over a decade.  The proposed treaty has never managed to obtain broad support, with many expressing understandable doubts that extending new rights to broadcasters merely for the act of broadcasting represents a significant shift away from traditional notions of copyright that serves the interests of creators and users.  Canada has expressed similar doubts at WIPO, yet CETA currently seeks to import the failed provisions into Canadian law.

Another critically important example are the digital lock rules found within CETA.  As you know, the digital lock rules in Bill C-32 have been amongst the most contentious provisions in the bill.  In fact, those provisions have always been contentious, dating back to their initial inclusion in the WIPO Internet treaties in 1996.  Those treaties established considerable flexibility in implementation in order to obtain consensus among the differing views on the issue.  The same concerns arose within the context of ACTA last year.  CETA includes digital lock provisions that extend beyond the requirements in the WIPO Internet treaties and would therefore remove some flexibility as Canada considers how best to comply with those treaties.

5. There are potential concerns with CETA and the current draft of Bill C-32.  For example, Bill C-32 codifies the "notice and notice" approach that has been used by Internet service providers across Canada for many years where they receive notifications of alleged infringement.  The notice-and-notice approach strikes a good balance between the rights of copyright owners and the interests of subscribers.  Yet the Europeans have proposed language that would require ISPs to remove or disable access to content upon being informed of an alleged infringement.  This appears to be an attempt to bring in a notice-and-takedown system that was rejected in Bill C-32 and in Bills C-61 and C-60 before it.

Another example involves statutory damages. Bill C-32 rightly distinguishes between commercial infringement - which carry full statutory damages of up to $20,000 per infringement - and non-commercial infringement - which carries a $5,000 cap on damages.  The Europeans have proposed language that may contradict the C-32 approach.  Indeed, the Canadian counter-proposal currently seeks to preserve the ability to make adjustments in special cases.

In sum, copyright provisions were not part of the Canada - US FTA or NAFTA.  They were largely excluded or kept very minor in our other more recent trade agreements.  CETA represents a very significant change that is part of a broader effort to pressure Canada to change its copyright laws.  While most agree that there is a need for some reforms, discarding a made-in-Canada approach for one drafted in Brussels raises significant concerns that implicate both current and future legislative proposals.

Full post as published by Michael Geist on February 18, 2011 (boomark / email).