CETA Intellectual Property Chapter Leaks for All to See

ACTA (Anti-Counterfeiting Trade Agreement) may have died in Europe for now, but CETA (Comprehensive Economic and trade Agreement) is still alive and well. Now, text of the Intellectual Property chapter has leaked and we are finally able to find out what is in this agreement.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

ACTA was effectively killed last week through an overwhelming defeat in the European Parliament. The defeat seemed to have marked a turnaround in how copyright agreements are handled. The secrecy surrounding this kinds of agreements is bad, you shouldn’t circumvent democracy by legislation through “trade” agreements and Internet users rights should be taken into serious consideration. Just some of the lessons that may have been learned in all of this.

Now, we are aware of what could be one of the future tests for European democracy. CETA, a “trade” agreement between Europe and Canada is another one of the many agreements floating around right now that aims to radically change intellectual property rights. While the earliest iteration had commented on this leaked information, suggesting that all the concerns surrounding ACTA are popping back up in CETA. A quick look at the comparisons shows that some parts are barely simple rewordings of what was in ACTA.

Wikipedia now contains a quick roundup of the provisions included in CETA:

– 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[s], 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.

Of course, what is interesting to note is that the leaked document in question is dated February of 2012. It wouldn’t be a surprise if this agreement was being formed under the assumption that the provisions would easily become law in Europe (which obviously didn’t happen). How much has changed since then? Only the negotiators and probably the big multinational corporations know that. Still, there have already been concerns raised about CETA including many non-copyright related concerns.

One thing to note is that this isn’t the first time CETA has leaked. Back in 2009, a proposal of CETA by the European Union regarding CETA was leaked. Much of what was learned back then are pretty much what is in the proposal books now three years later.

We don’t know when this agreement will be finalized and we don’t know when it’ll be debated by politicians. When this agreement will finally be at the other end of the pipeline is anyone’s guess. Still, I’m sure that many Europeans and Canadians will be waiting to fight it whenever it comes out the other end.

(Hat tip: Slashdot)

Drew Wilson on Twitter: @icecube85 and Google+.

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