Skip to content

CETA secret no more: IP leak from Canada-EU trade negotiations bound to create a furor

A wikileak outlining Europe’s intellectual property demands of Canada is turning heads and is bound to shed some needed light on the Comprehensive Economic and Trade Agreement (CETA) negotiations, which started in October in Ottawa. Michael Geist, a copyright and IP expert at the University of Ottawa, wrote on December 16 that: “When combined with [the Anti-Counterfeiting Trade Agreement, or ACTA], the two agreements would render Canadian copyright law virtually unrecognizable as Canada would be required to undertake a significant rewrite of its law. The notion of a ‘made-in-Canada’ approach – already under threat from ACTA – would be lost entirely, replaced by a made-in-Washington-and-Brussels law.”

Here’s NDP MP Charlie Angus on ACTA in the Georgia Straight recently:

Under the treaty, Canadian laws on privacy and the standard presumption of innocence would be trumped by the right of corporations to snoop, threaten, and sue any Internet service provider or user for perceived infringements.

ACTA would enshrine absolute legal protection for digital locks even if these locks were used to maintain anti-competitive practices or to override existing rights that citizens normally enjoy, in terms of fair access for copyrighted works. Citizens who do nothing more than break the lock on their iPhone or back up protected DVDs would be treated like criminal bootleggers.

By far the most contentious element of the treaty is setting the stage for a “three strikes and you’re out” provision. This means that any Internet user who is called out for three supposed infringements of corporate copyright policy would be denied access to Internet accounts, a cruel punishment in the information age.

According to Geist and others reporting on the CETA leak, the European demands include:

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

* WIPO ratification. The EU is demanding that Canada respect the rights and obligations under the WIPO Internet treaties. The EU only formally ratified those treaties this week.

* Anti-circumvention provisions. The EU is demanding that Canada implement anti-circumvention provisions that include a ban on the distribution of circumvention devices. There is no such requirement in the WIPO Internet treaties.

* ISP Liability provisions. The EU is demanding statutory provisions on ISP liability where they act as mere conduits, cache content, or host content. ISPs would qualify for a statutory safe harbour in appropriate circumstances. There is no three-strikes and you’re out language (which presumably originates with the U.S.).

* 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 issue, mandate disclosure of banking information in commercial infringement cases, allow 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).

* Making available or distribution rights. The EU is demanding that Canada implement a distribution or making available right to copyright owners.

Geist is Canada’s heavy-hitter on defending a fair copyright regime — not one that hands over all power to Hollywood, the recording industry and pharmaceutical companies, among other large firms who are essentially writing the ACTA agreement for the US Trade Representative. With Geist and the Canadian “user” community scrutinizing the European trade negotiations, we’re bound to see more of CETA in the news. Thank you wikileak!