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Canada’s participation in the Anti-Counterfeiting Trade Agreement negotiations has understandably generated enormous public concern as leaked documents indicate that ACTA would have a dramatic impact on Canadian copyright law.

The U.S. has proposed provisions that would mandate a DMCA-style implementation for the WIPO Internet treaties and encourage the adoption of a three-strikes and you’re out system to cut off access where there are repeated allegations of infringement.

Yet it would appear that ACTA is actually only part of the story.  Canada is also currently negotiating a Comprehensive Economic and Trade Agreement with the European Union.  The negotiations have been largely off the radar screen (and similarly secretive) with the first round of talks concluding in October in Ottawa. Intellectual property figures prominently in the agreement.  In fact, the EU proposal for the IP chapter has just leaked online and the document is incredibly troubling.  When combined with 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.

What are some of the EU’s demands?

• 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.

These are just the copyright provisions.  There are sections dealing with patents, trademarks, designs, and (coming soon) geographical indications. These include:

• requiring Canada to comply with the Trademark Law Treaty (Canada is not a contracting party)
• requiring Canada to accede to the Hague System for the International Registration of Industrial Designs
• creating new legal protections for registered industrial designs including extending the term of protection from the current 10 years to up to 25 years
• requiring Canada to comply with the Patent Law Treaty (Canada has signed but not implemented)
• requiring Canada to establish enhanced protection for data submitted for pharmaceutical patents

While the leaked document may only represent the European position, there is little doubt that there will enormous pressure on Canadian negotiators to cave on the IP provision in return for “gains” in other areas.  The net result is that when combined with the ACTA requirements, Canadian copyright law reform may cease to become Canadian.

Instead, the rules will be dictated by secretive agreements as the U.S. and Europe tag team to pressure Canada into dramatic changes far beyond those even proposed in Bills C-60 or C-61.

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