ACTA now in CETA, critics take aim at new enforcement measures

The Canada-EU free trade agreement's provisions on intellectual property are now the same as those contained in the Anti-Counterfeiting Trade Agreement (ACTA), according to a leaked draft published on Michael Geist's blog. The ACTA, which the Conservative government signed last year, is an international intellectual property trade agreement between Australia, Canada, the European Commission and the EU member states, and Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. Responding in part to rallies against the ACTA across Europe in February, the European Parliament on July 4 rejected the agreement by a vote of 478 to 39 (with 165 abstentions). The EU Commission is now expected to renegotiate the deal, developed over four years in closed-door trade talks. Following a ninth round of negotiations on the Canada-EU Comprehensive and Economic Trade Agreement (CETA) last October, Canada and the EU hope to finalize the trade agreement this year. Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa, published a leaked draft of the CETA on his blog Monday. He wrote that the EU seeks to use the CETA “as a backdoor mechanism to implement the ACTA provisions.” Geist wrote that the leaked Intellectual property chapter, dated February 2012, shows “Canada and the EU have already agreed to incorporate many of the ACTA enforcement provisions into CETA, including the rules on general obligations on enforcement, preserving evidence, damages, injunctions, and border measure rules.” The agreement would incorporate ACTA's criminal enforcement and co-operation chapters into CETA, which “were the target of European Parliament criticism for their lack of proportionality and uncertain application,” Geist said. “Canada has similarly pushed for the inclusion of ACTA provisions, proposing identical digital lock rules as well as ACTA-style Internet service provider provisions that raised privacy concerns from the European Data Protection Supervisor,” he wrote. Geist added that the EU Commission is pushing to revive the ACTA, and has asked the European Court of Justice to rule on ACTA's compatibility with “fundamental European freedoms,” which, in the case of a favourable ruling, could push the European Parliament to reconsider the agreement. The inclusion of the ACTA provisions in the CETA drew criticism from ACTA's opponents this week. European digital rights advocacy group La Quadrature du Net issued a release Tuesday that said the “leaked version of the Canada-EU trade agreement (CETA) contains the worst parts of ACTA.” The European Commission “must drop CETA negotiations (or expurgate it from all the aforementioned, copyright-related provisions), or else be humiliated once again when the European parliament get to vote on CETA,” the release said. Early drafts of the ACTA showed controversial provisions modelled on the U.S. Digital Millennium Copyright Act, but a final text released in 2010 showed that proposals were changed to resemble the Internet treaties of the World Intellectual Property Organization (WIPO). Canada implemented those WIPO treaties through the passage of Bill C-11 this spring. According to an October 2010 leaked draft, the EU had proposed an extension of Canada’s term of copyright from 50 to 70 years following the death of the author, a measure that was not included in the Conservative government’s copyright reform legislation. That proposed provision was not included in the last draft from February. David Robinson, associate executive director of the Canadian Association of University Teachers (CAUT), who has been tracking the CETA and ACTA copyright provisions, said in a phone interview that “some of the worst excesses” included in previous drafts are no longer there. “It's adopting more of an ACTA approach,” Robinson said of the European Commission. “On the whole, that means it's not as bad as what we anticipated, but there's still some concerns around some of the enforcement provisions built into it.” The United States has proposed a copyright term of 70 years as part of the Trans-Pacific Partnership free trade negotiations, to which Canada has accepted an invitation to become an official member. Robinson said governments are taking lessons from ACTA, noting that it is more politically expedient to bury intellectual property provisions in more comprehensive, general trade agreements. Following the vote on ACTA by the EU Parliament, EU Trade Commissioner Karel De Gucht said in a statement that he recognized that choice. “As I have stated before, the European Commission will continue to seek the legal opinion of the European Court of Justice (ECJ) on whether this agreement harms any of the fundamental rights of European citizens – including freedom of speech. European citizens have raised these concerns and now they have the right to receive answers. We must respect that right,” De Gucht said. “It's clear that the question of protecting Intellectual Property does need to be addressed on a global scale—for business, the creative industries whether in Europe or our partner countries. With the rejection of ACTA, the need to protect the backbone of Europe's economy across the globe: our innovation, our creativity, our ideas – our intellectual property—does not disappear,” he said. The EU's national customs authorities say counterfeit goods entering the EU tripled between 2005 and 2010. The European Commission said in July 2011 that, in 2010 customs registered around 80,000 cases, almost doubled the number since 2009. According to a leaked draft of TPP measures dated Feb. 10, 2011, the U.S. is proposing stricter legal protections for the digital locks on content, software and devices, restrictions on trade in parallel imports, and more stringent penalties for copyright infringement. The United States, as part of the TPP, is also proposing a "three-step test" that would oblige member countries to "seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research," the United States Trade Representative (USTR) said in a July 3 release. "These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence." The 2010 CETA draft also included a chapter dealing with telecommunications, in which the EU proposed to open up Canada’s telecom sector to foreign ownership. The Conservative government's omnibus budget bill, C-38, which passed into law this spring, amended the Telecommunications Act to lift foreign investment restrictions for telecom carriers whose annual revenues from telecom services amount to less than 10 percent of national, annual revenues. Those new rules for foreign investment came into force on June 29, when C-38 received royal assent, Derek Mellon, a spokesman for Industry Canada, said in an emailed statement. news@thewirereport.ca

ACTA now in CETA, critics take aim at new enforcement measures

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