Last week's revelations
that the Canada - EU Trade Agreement's intellectual property chapter
draws heavily from the Anti-Counterfeiting Trade Agreement sparked
widespread media coverage across Europe (initial
post with links to coverage, more here,
here,
here,
here,
here,
here,
and here). After
initially refusing to comment, the European Commission, clearly
sensing the growing public pressure, provided a response
in which it claimed that the leaked February 2012 text was outdated
and that the Internet provider provisions in CETA (which had
mirrored ACTA) had been changed. While the initial response came via
Twitter, a more detailed statement was circulated to many Members of
the European Parliament and others. The statement included the
following:
All FTAs negotiated by the EU, including CETA, contain
chapters on IPR enforcement. They are just one aspect of a
comprehensive approach. CETA is not different.
The Commission fully respects the vote of the EP of the
European Parliament on ACTA and the IPR related text of CETA is
being reviewed in order to remove or adapt elements that are
considered problematic in the opinions and reports adopted by
European Parliament.
The draft text of CETA of February 2012 (on which the press
comments are based) is outdated and reflects thinking at a time
before the ACTA vote in EP. It should come as no surprise that
certain provision resemble ACTA, which both Canada and the EU
had negotiated. In the meantime, negotiations have evolved and
the February 2012 text no longer represents the current state of
the negotiations.
For instance, even before the ACTA vote in the EP, the
provisions on IPR enforcement on the internet had already
evolved. For instance, Articles 27.3 and 27.4 of ACTA, which are
considered problematic in the EP, are no longer reflected in
CETA.
The final result of the IPR chapter of CETA is likely to be
very close to the IPR chapter of the Korea FTA, which was
endorsed by a broad majority in the Parliament, and which has
been in force for over a year now.
The European Commission statement not only confirms some changes in
CETA, but suggests that the final version will look like the EU
- South Korea Free Trade Agreement. This disclosure raises its
own set of concerns for both Europeans and Canadians. This posts
outlines six major areas of concern given the current uncertainty
with CETA, its linkages to ACTA, and the influence of the EU - South
Korea FTA.
1. Canada Is Reluctant to
Agree to the EU - South Korea FTA Model
The mere fact that the European Commission says CETA will be close
to the EU - South Korea FTA rather than ACTA does not make it so.
Earlier CETA
leaks (this version is from early 2011) did indeed rely
heavily on the EU - South Korea FTA, yet Canada did not agree to
those terms. The EU - South Korea FTA would require significant
changes to Canadian law and there is no indication that Canada is
prepared to make those changes. It appears that the shift to ACTA
within CETA was aimed at finding common ground on the copyright
issue. The EU may now wish to go back to its EU - South Korea FTA
model given the ACTA rejection at the European Parliament, but that
suggests that the gap between the two negotiating parties will have
grown on copyright. Given the ongoing disagreement over patent
provisions in CETA, the IP chapter may prove the most divisive in
the entire agreement.
2. The EU - South Korea
FTA Is More Problematic Than ACTA In Some Areas
The EU - South Korea FTA is
more problematic than ACTA in certain respects. The scope of
the EU - South Korea FTA is far broader as it includes copyright
term extension (it would require Canada to extend the term of
copyright by an additional 20 years), a wide range of broadcasting
rights, an artists' resale right, detailed provisions on design
rights, and potential criminal liability for geographical
indications violations. These provisions are not found in ACTA. The
European Parliament may have approved the EU - South Korea FTA at a
time when the public was less engaged on IP issues, but that does
not make elements of the agreement any more palatable in today's
environment. Indeed, the Green Party and European United Left/Nordic
Green Left Party Group voted
against the EU - South Korea FTA as the Greens drew parallels
to ACTA.
3. The EU - South Korea
FTA Internet Provider Provisions Are Problematic
Even assuming the adoption of the Internet provider provisions in
the EU - South Korea FTA instead of the ACTA approach, there are
still serious concerns. For example, that EU - South Korea FTA
includes a specific provision that permits the use of website
blocking and three-strikes systems:
This Article shall not affect the
possibility, in accordance with the Parties' legal systems, of a
judicial or administrative authority requiring the service
provider to terminate or prevent an infringement.
The EU - South Korea FTA Internet provider provisions also
contemplate removal of content without a court order, as the
limitation on liability for hosting ends when a provider becomes
aware of a potential illegal activity and does not act expeditiously
to remove or disable access to the information. These provisions go
beyond the requirements under current Canadian law.
4. The
ACTA Internet Provider Provisions Are Only Part of the Internet
Chapter Problem
Changing the Internet provider provision alone does not even address
all the concerns associated with the ACTA/CETA Internet chapter. For
example, the ACTA/CETA technological protection measures provisions
(often referred to as digital locks) has more expansive language
than that found in EU - South Korea FTA. While ACTA/CETA refers to
the need for "adequate legal protection and effective legal remedies
against the circumvention of effective technological measures", the
EU-South Korea FTA refers only to "adequate legal protection" and
adds a knowledge requirement. The Commission has not indicated which
language it supports. Canada adopted ACTA-like language in Bill
C-11, while the EU directive is more consistent with the EU - South
Korea FTA.
5. The ACTA Internet
Chapter Is Only Part of the ACTA Problem
While the European Commission has indicated that the ACTA Internet
provider provision has been changed in CETA, this only touches on
part of a much bigger problem as there are also concerns with the
civil enforcement, criminal enforcement, and border measures
provisions. For example, the ACTA/CETA injunction provision for
civil enforcement states:
Each Party shall provide that, in
civil judicial proceedings concerning the enforcement of
intellectual property rights, its judicial authorities have the
authority to issue an order against a party to desist from an
infringement, and inter alia, an order to that party or, where
appropriate, to a third party over whom the relevant judicial
authority exercises jurisdiction, to prevent goods that involvethe
infringement of an intellectual property right from entering into
the channels of commerce.
Yet the EU - South Korea FTA version of this provision does not go
as far:
Each Party shall ensure that, where a
judicial decision is taken finding an infringement of an
intellectual property right, the judicial authorities may issue
against the infringer an injunction aimed at prohibiting the
continuation of the infringement.
The difference is significant as the EU - Korea FTA requires a
finding of infringement, while ACTA/CETA versions do not.
The ACTA/CETA scope of criminal liability is also broader than than
found in the EU - South Korea FTA. It includes language that says
"acts carried out on a commercial scale include at least those
carried out as commercial activities for direct or indirect economic
or commercial advantage." No similar language is found in the EU -
South Korea FTA. This becomes particularly important since all
agreements include language on aiding and abetting, which
significantly increases the scope of potential liability.
Moreover, the criminal penalties provisions are broader in ACTA/CETA
(requiring penalties that include imprisonment as well as monetary
fines sufficiently high to provide a deterrent to future acts of
infringement) when compared to the EU - South Korea FTA (which
require sentences of imprisonment and/or monetary penalties that are
effective, proportionate and dissuasive). The difference between the
two is significant since the EU - South Korea FTA leaves
imprisonment as an option rather than a mandatory requirement and
adds a proportionality standard.
The ACTA/CETA criminal chapter also includes an anti-camcording
provision, with the CETA version even stricter than that found in
ACTA. The EU - South Korea FTA does not contain such a provision at
all.
The border measures provisions also go further in ACTA/CETA than the
EU - South Korea FTA. For example, on determination as to
infringement, the EU - South Korea FTA includes the following
balancing provision:
In considering a request for
corrective measures, the need for proportionality between the
seriousness of the infringement and the remedies ordered as well
as the interests of third parties shall be taken into account.
No such provision exists in ACTA/CETA. Moreover, ACTA/CETA includes
a border measures provision on security bonds, but the EU - South
Korea FTA does not.
Does the Commission now plan to switch back to the EU - South Korea
FTA language on all of these issues?
6. ACTA, CETA and the EU -
South Korea FTA All Share a Common Trait: Lack of Transparency
If there is a common bond between ACTA, CETA and the EU - South
Korea FTA, it is that all three agreements were shrouded in secrecy
during the negotiations. The lack of transparency associated with
ACTA in particular created enormous distrust and is widely viewed as
one of the reasons for the massive public backlash against the
agreement. Yet despite the obvious public opposition to secret
negotiations, CETA faces a similar level of secrecy with no official
releases of draft texts. With negotiators meeting this week on CETA,
both sides should agree to an immediate release of the draft text at
the close of this round of negotiations so that the public can
provide informed commentary on the direction of the agreement.