Canada should view CETA process as an opportunity to carve out its interests, says de Beer

Canada shouldn’t necessarily view the ongoing negotiations surrounding the EU-Canada Comprehensive Economic and Trade Agreement (CETA) as a threat. The country should instead view the process as a way to leverage some of its Intellectual property (IP) interests onto the agenda, Jeremy de Beer, associate professor of law at the University of Ottawa, told The Wire Report in an interview. De Beer, who writes and researches about intellectual property, technology, and international development, is the editor of a new book on the World Intellectual Property Organization’s (WIPO) Development Agenda, an initiative to incorporate international development into the work of WIPO. Canada and the EU are currently negotiating the CETA, and leaks show that the EU is proposing significant changes to Canadian copyright law. The parties are scheduled to meet for a third round of negotiations from April 19-23 in Ottawa. The Wire Report hears that IP is again on the agenda. De Beer said that, despite the leaks, Canada is not negotiating with the United States, an intellectual property powerhouse, and is in a better position to reach a consensus with the EU on key IP issues that are in line with Canada’s agenda. Titled Implementing the World Intellectual Property Organization’s Development Agenda, the book is co-published by the International Development Research Centre and Centre for International Governance Innovation. An international collection of essays from Canada, emerging economies, and other countries, the book presents ideas for implementing the WIPO Development Agenda. De Beer discussed Canada’s role in international copyright law, its clout at WIPO, and the significance of copyright proposals in trade agreements like the CETA and the United States-led Anti-Counterfeiting Trade Agreement (ACTA). What was the rationale for this book? We recognized that there were a number of important international issues resulting from changing geopolitical circumstances and global economic power. When you look at the rise of India, China and Brazil, they’re reshaping the international economic landscape. Everyone talks about being a knowledge economy or an information society, but we don’t ask, “Well, how are the rules set that govern knowledge and information? How are these changing geopolitical dynamics impacting the way in which those rules are set?” So we identified the World Intellectual Property Organization and its proposed Development Agenda as potentially transformative. We decided we needed to do some research on that from an independent perspective. From the work on WIPO over the years to now the work on copyright that we’re seeing in the CETA and the ACTA, do you think that the Department of Foreign Affairs is taking more of a lead role on Canadian copyright? I think there are two complexities to unpack. One is that there have always been shifts for the proliferation of copyright debates in different international fora. So we see it going back and forth from one organization to another, or proliferating among different organizations at the international stage. There’s UNESCO (United Nations Educational, Scientific and Cultural Organization), there’s WIPO, there’s the WTO (World Trade Organization), and many, many more. Now there’re these new, emerging, bilateral or plurilateral fora, like the Canada-EU Comprehensive and Economic Trade Agreement, and the Anti-Counterfeiting Trade Agreement. This is nothing new, but it makes it a lot more difficult to manage the issue. There are debates and developments happening in all these different fora. The second level of complexity is trying to negotiate a coherent policy within the Canadian government. I don’t just mean the federal government. The provinces have a stake in this as well. Technically, most people view copyright as an exclusive federal jurisdiction, but when it impacts things like education, consumer protection, or the market for cultural products, like DVDs and CDs, the provinces have a stake as well. So you’ve got to negotiate a whole bunch of different interests and perspectives, and even when you narrow it down to the federal level, you’ve got the Industry Department, the Heritage Department, the Foreign Affairs Department, and some other departments, all trying to present a clear and coherent perspective about what Canada wants or needs out of negotiations happening in all of these different fora. So it’s really complicated, and it’s getting more complicated, not less. Can you talk more about the policy trickle down effect? It’s both law policy and practice that trickles down from these international debates to domestic policies and domestic practices. If we look for example at the debate that was happening 15 years ago at WIPO, it’s similar to the debates we’re having right now in Canada about domestic policy. Fifteen years ago at WIPO, it was the eve of the now-famous WIPO Internet treaties, dealing with digital copyright issues, and there were debates and questions and discussions and procedures playing out. Now, Canada finds itself, more than a decade later, trying to grapple with the implementation of the treaties. How do we deal with these issues on a domestic front? There’s a lot of room to manoeuvre within the treaties, but it would have been better if we had foreseen these issues at the time. To an extent, we did, which is why the agreements at the international level are as flexible as they are. But it’s equally important to think about what’s going to be happening in domestic policy 10 or 15 years from now. It’s the issues that are being debated at WIPO, in response to something like the Development Agenda, that are going to be the most controversial policy questions for domestic implementation over the next decade, or two decades, down the road. It sounds like a long time, but it’s not. So what are some of those policy issues? Can any of them affect Canadian copyright policy? Absolutely. There are many, but I’ll give you one example. One of the things that the Development Agenda is supposed to be all about is a more nuanced view of what IP can or cannot do in terms of stimulating economic growth, innovation, or creativity, and taking an evidence-based view of the ways in which these issues affect peoples’ daily lives. So, before the WIPO Development Agenda, most new international norms were “addition norms.” They created new rights, they extended the term of copyright, or they expanded patent protections for new types of innovations. It was almost never the case that there would be a calibration, where instead of just expanding the legal baseline, you would actually recalibrate it, and try to find something more appropriate in light of the evidence. Well, since the adoption of the WIPO Development Agenda, one of the things that's on WIPO’s radar and being actively discussed is the idea of some sort of an international consensus on minimum limitations and exceptions to copyright. Instead of setting an agreement that says the minimum term of copyright protection shall be the life of the author plus 50 years—where countries can go to 70 years if they want, or 100, or to infinity because this is just a minimum floor—now countries are saying, “Wait a second. If it makes sense to have harmonized minimum standards—and it does because there are good justifications for this—then it also makes sense to have harmonized exceptions and limitations.” No one had ever thought that way before the Development Agenda, or at least those ideas had never gained traction, and now they are. This is at the forefront of the agendas at several different WIPO committees and different departments in WIPO. I won’t be surprised if that’s the debate we’re having domestically in Canada in 2025. What do you think about the copyright reform proposals in the CETA and the ACTA? Do you agree with critics who say trade agreements like these circumvent the work of WIPO? You have to be careful to separate the two. I don’t think you can conflate ACTA and CETA. Our government officials have gone on the public record in saying that Canada’s participation in the ACTA negotiations is a direct result of an inability to make progress at WIPO, because for the last five years, WIPO’s been preoccupied with this Development Agenda. Countries that sought progress on new norms and stronger enforcement mechanisms went elsewhere. They, in essence, started their own club. That’s a problem, I think. In the long term, I think it is a threat to the organization of WIPO. WIPO’s been around in one form or another for more than 100 years, and it’s seen these sorts of threats to its mandate and competencies before, and the organization is not going to fold or take a back seat in work on these issues. In fact there are committees at WIPO also working on enforcement issues in a much more transparent and inclusive way, and these discussions are going forward regardless of where ACTA goes. The Canada-EU discussions are a little bit different. It’s not unusual to have an intellectual property chapter in any bilateral free trade agreement. Like what we saw with the North American Free Trade Agreement? Absolutely. What’s less threatening than the IP issues in the CETA is the fact that, first of all, it’s not unusual to have this happen bilaterally, and in some ways, it’s an opportunity to get consensus on some really important issues where it would be more difficult to do that in an international forum like WIPO or plurilateral negotiations like ACTA. So we don’t have the United States as the sort of monkey on our back trying to dictate what the policies are going to be. There’s a better opportunity to engage some of the issues and carve out something that’s in line with domestic interests when the United States isn’t involved. Although CETA is not as threatening from a procedural standpoint, we’ve still got to pay very close attention to the substance of the agreement and what’s it’s going to say about copyright and IP. Some of the leaked documents deal with issues like copyright term extension, and enforcement of copyright online. These are very controversial topics. What I’d like to see is some discussion of more progressive issues that have not currently been on the radar. If we can open up these discussions to get more participation and more transparency, I think the result could be positive. I’m not suggesting that IP shouldn’t be dealt with in the Canada-Europe negotiations—in fact it would be unusual if it weren’t—but I hope that we can engage on substantive policies to get things that further Canada’s interests. It’s my understanding these kinds of negotiations, like CETA and ACTA, are usually done behind closed doors. So what’s the justification for us to demand more transparency, when transparency may not be the norm? It’s not unusual to deal with complicated and delicate issues in manners that aren’t fully transparent. That said, it’s also not true that there’s secrecy and non-transparency surrounding negotiations as a whole. I think the truth is a shade of grey. Maybe we’re in an age where digital culture makes it more appropriate that these things become more transparent. Transparency was never expected or demanded a decade ago or two decades ago, and maybe more pragmatically, there just weren’t the mechanisms to provide the transparency and participation that we have available to us today. As there is pressure in general for government to be more open and transparent, there’s no reason for trade agreements to be exempt from that general push for transparency. There’s no reason to treat trade agreements any differently than government in general, in terms transparency, accountability and participatory democracy. How much clout does Canada have at WIPO? We like to think of ourselves as a middle power, and I think that probably overstates our influence in terms of developments at WIPO. Technically speaking, the organization works on a one-member, one-vote basis, so all of the member states of WIPO are equally powerful and equally influential. But in fact that’s not the way it works. There are some countries that have historically taken the driver’s seat in terms of pushing particular agendas. Some of it also depends on the individuals involved. If you have particular representatives who are more knowledgeable or more interested, or for purely circumstantial reasons have more time to deal with one particular issue or another, some tenacity can be incredibly productive and valuable. Historically we’ve tried to tow this line: We want to be in the active negotiations, we want to recognize that not everything there is going to benefit us, but we’re better on the inside than the outside. We’ve done this since the 1880s, and we continue to do this. I would like to see Canada play a bolder role on this stage, because I think there’s a lot that Canada can offer in terms of leadership and constructive solutions to some difficult, and oftentimes polarizing problems. So Canada can play the same role that is plays at other international fora? Yes, but I think we’ve got a bit bigger potential role to play in the area of IP. One of the reasons for that is we’ve been holding out on some of the new treaties. We haven’t implemented the WIPO Internet treaties. We’re still engaging in this domestic debate about what’s right for Canada—not because we’re a laggard or because we want to be a piracy haven—absolutely not. Canada has tried to implement copyright reform legislation, and for reasons beyond the government’s control, it has not been able to follow through on it. But this puts us in a unique position where we have the benefit of hindsight, and can say, “How well did those policies work out for other countries over the last fifteen years? Is this where we should be directing our attention? Can we implement a different model and demonstrate that there are advantages to doing things differently?” It’s not to be an outlier, but to utilize the flexibility and space that exists with these international instruments. And that’s not necessarily the case in other areas of foreign policy. I really think IP, as delicate and sensitive an issue it is politically, is a real opportunity for us to do some bold things, and I don’t mean recklessly. sdoyle@thewirereport.ca

Canada should view CETA process as an opportunity to carve out its interests, says de Beer

Broadcast | March 2, 2010

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