Law Times

PAGE 8 An online resource tool 1.800.263.3269 ntitled-6 1 1/28/10 4:34:45 PM Focus On INTELLECTUAL PROPERTY / TRADEMARK LAW ACTA negotiations raising alarm Agreement threatens made-in-Canada copyright rules: Geist BY PAUL BRENT For Law Times F or the past two years, Canada, the United States, and the European Union have been meeting in se- cret in an effort to craft new Internet copyright rules. The seventh round of the marathon anti-counterfeiting trade agreement negotiations concluded at the end of January in Mexico with the possibility of drawing up a final agree- ment by as early as this fall. The moves come as another set of under-the-radar trade negotiations with the EU looms large over the entire field of copyright. Either could have a huge impact on Canada's approach to bal- ancing the rights of copyright holders and the public's right to use protected works. In the meantime, observers of the ACTA process say there is plenty to be concerned about beyond the secrecy of the talks: a lack of public input, the behind-the-scenes dominance of content owners, and leaks that include details of severe penalties such as "three-strikes" rules for online copyright violators. Ottawa-based law professor Michael Geist, who has been closely following the ACTA negotiations and commenting on them through newspaper columns and his popular legal blog, argues Canadians should be very worried about the direc- tion and scope of the proceedings. "This is far more than a counterfeit- ing agreement," says Geist. "There are elements that deal with counterfeit- ing, but at its heart it is a copyright [and] intellectual property agreement. Particularly for Canada, where this is- sue has been a hot issue, one in which thousands of Canadians have expressed interest and actively participated in the policy process through the copyright consultation last summer, an agreement like ACTA has the threat of completely undermining a made-in-Canada ap- proach on copyright." If and when participating countries reach an agreement, Canada could lose the flexibility that currently exists under international law to reform its copyright rules by balancing treaty requirements with our own interests, Geist, a Univer- sity of Ottawa professor, argues. Industry Minister Tony Clement has countered that any ACTA requirements would remain subservient to Canada's Proposed ACTA provisions have become more of a concern for Samuel Trosow than the federal government's long-standing moves to revamp Canada's copyright laws. domestic laws. Geist, however, cites two examples of what could disappear in the post-ACTA copyright world. The World Intellectual Property Organization's trea- ties, which contain "considerable flexibil- ity in terms of how they get implement- ed," would be lost to the more stringent U.S.-led rules contained in ACTA, he maintains. "It basically puts us in a posi- tion where so much of the debate and the discussion about how Canada can put these rules into effect and at the same time preserve a copyright balance in the digital world would be lost. ACTA effectively trumps many of the kinds of domestic choices we have." Similarly, ACTA rules, rather than made-in-Ottawa bills, would govern dealings between Internet service pro- viders and domestic users accused of violating copyright, Geist argues. Based on leaks from the negotiations, which remain the only way details of the ACTA agreement are getting out, governments are headed away from the current "no- tice and take down" system — in which offending usage such as television clips posted on YouTube are quickly taken down at the copyright holder's request — towards a "notice and termination" system that would see online users lose Internet access after three allegations of infringement. As a result, Geist and others have pointed out that under the proposed agreement, denying Internet service wouldn't even require proving copyright infringement. In the meantime, ACTA could in ef- fect push Ottawa's now-stalled copyright legislation to the sidelines. "For me, I think the developments with the ACTA treaty are almost a bigger issue now for me than the status of the legislation," says Samuel Trosow, an associate pro- fessor at the University of Western On- tario's faculty of law and co-author of Canadian Copyright: A Citizen's Guide. The secrecy of the ACTA negotia- tions and the lack of input from the public have some politicians crying foul. "Why the secrecy?" Charlie Angus, the NDP's digital issues critic, is asking. "This is a treaty that has the potential to criminalize the behaviour of thousands of Canadians and lock down future de- velopment of the Internet." In Britain, members of Parliament from all the major parties have put forward a motion demanding greater transparency and warning that ACTA could affect the digital economy bill that's currently in the works. Among other concerns, the U.K. motion warns of corporate interests being represented at ACTA while shutting out public in- terests. It also states: "if the companies affected by the agreement are party to the discussions and able to influence de- cisions, parliamentarians who represent the public and are responsible for the legislation in these areas should also be kept up-to-date with developments and be able to contribute to the debate." If ACTA isn't enough to keep Cana- dian copyright negotiators and observ- ers busy, the country is also in the midst of talks with the EU to hammer out a new trade agreement. The talks are now in the second round, and the Euro- peans have asked for sweeping changes to Canadian intellectual property law. They would include extending copy- right terms to life of the author plus 70 years (Canada currently has life plus 50 years), anti-circumvention rules, resale rights, and ISP liability provisions. The economic stakes are high for Canada, which could put pressure on negotiators to make concessions in areas such as intellectual property. First, the 27-country EU, with 500 million citi- zens, is a huge market. Based on a 2008 joint study, liberalizing commerce be- tween Canada and the EU could boost trade by 20 per cent or $38 billion and result in GDP gains of up to $12 billion annually for Canada by 2014. The com- mercial areas expected to gain the most from such a deal are not ones most ob- servers would link with intellectual prop- erty and copyright: aerospace, chemicals, plastics, wood products, aluminum, fish and seafood, light vehicles and automo- tive parts, and agricultural products. Canada-EU negotiations began in May 2006 with a publicly released agenda that included trade in goods and services, investment, government procurement, regulatory co-operation, intellectual property, temporary entry of business people, and competition policy. In announcing the start of the second round of negotiations last month, then- international trade minister Stockwell Day said Canada is "pursuing an ambi- tious trade agenda, and negotiating an economic agreement with the EU is a priority." The issue of Canada-EU free trade has received relatively little attention from the mainstream press, something that may be due to Canada's U.S.-centred approach to public policy issues or sim- ply a reflection of the fact that such an agreement seems far off or unattainable. Meanwhile, The Globe and Mail report- ed last month that Canadian diplomats have learned some EU countries might be unwilling to support a Canada-EU free trade agreement. The apparent re- sistance, however, isn't over the perennial concern for supporting Europe's farmers. Instead, it's over what many Canadians might consider "soft" issues: Canada's perceived role as a climate-change villain, seal hunting, and even the government's decision to reorient foreign-aid dollars from Europe's doorstep in sub-Saharan Africa to the Americas. LT WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM February 8/15, 2010 • Law Times

• Cover
• LSUC Relaxes Rules
• McLachlins Decade
• Focus On Intellectual Property/Trademark Law