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CETA is the new ACTA: Leaked intellectual property chapter sparks angst

| July 10, 2012
MEPs from the Greens/EFA group hold up a sign saying "Hello Democracy, Goodbye ACTA" Photo: European Union 2012 - European Parliament/Flickr

According to the Toronto Star's Internet law columnist Michael Geist, Canada and the European Union are trying to ratify the controversial Anti-Counterfeiting Trade Agreement through the backdoor, by including almost all its Internet and enforcement provisions in the Comprehensive Economic and Trade Agreement (CETA). The news, which is based on a newly leaked copy of CETA's intellectual property chapter, has turned a relatively sleepy Twitter hashtag (#CETA) into an overnight sensation, with hundreds of people talking about the Canada-EU deal and what it could mean for Internet users. That has a lot to do with the European parliament voting against ACTA last week.

"The ACTA talks concluded in 2010, but the controversy over the deal continued to grow," writes Geist in his column. "Earlier this year, thousands took the streets in Europe to protest against an agreement that was negotiated in secret and that raised serious concerns about privacy and free speech."

ACTA was and is still sold as a way to improve the enforcement of anti-counterfeiting law internationally. It was negotiated in secret and then signed by the EU, U.S., Australia, Canada, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea and Switzerland. For ACTA to come into force, at least six of these signatories need to ratify the agreement. But on July 4, the European parliament said no way because the negotiating process was too secret, and there were far too many unanswered questions about the impact ACTA would have on privacy and civil liberties, and on innovation and the free flow of information.

The EU vote struck "a major blow to the hopes of supporters who envisioned a landmark agreement that would set a new standard for intellectual property rights enforcement," writes Geist. The European Commission thinks it can win back parliament's support for ACTA if the European Court of Justice rules that the agreement is compatible with EU privacy rules and freedoms. But Geist suggests another scenario where, through the CETA negotiations, ACTA comes into force through the back door.

"According to the leaked document, dated February 2012, 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," he says. "One of these provisions even specifically references ACTA."

Geist continues:

The European Commission strategy appears to be to use CETA as the new ACTA, burying its provisions in a broader Canadian trade agreement with the hope that the European Parliament accepts the same provisions it just rejected with the ACTA framework. If successful, it would likely then argue that ACTA poses no new concerns since the same rules were approved within the Canadian trade deal.

The backdoor ACTA approach creates enormous risks for Canada's trade ambitions. Given the huge anti-ACTA movement, the Canada -- EU trade deal could face widespread European opposition with CETA becoming swept up in similar protests.

Twitter is not always the best litmus test of political sentiment. But with Geist's article being re-tweeted at the rate of about 24 times an hour in several European languages, CETA has the attention of a growing movement of Internet freedom advocates with the numbers and savvy to put serious damper on Canadian and European ambitions on intellectual property. Considering the importance of the IP chapter to EU negotiators in particular, things could get interesting during the next CETA round in Brussels, July 16 - 20.

No place for IP in international trade deals

As mentioned above, the intellectual property chapter in CETA deals with both copyright and patents for things like drugs, as well as how those IP rights should be enforced. Development organizations like Oxfam and the Grandmothers to Grandmothers campaign oppose overly strong profit protections for brand name drug companies because they make imports of life-saving HIV/AIDS and other medication too expensive for development and least developed countries.

On July 9, the Canadian HIV/AIDS Legal Network applauded a new report from the Global Commission on HIV and the Law, a high-level, independent body of global leaders and experts, which found that "bad laws and their punitive enforcement are fuelling the HIV epidemic -- and conversely, good laws are key to overcoming it." Many of the commission's recommendations were relevant to Canada, said the AIDSLaw in a media statement. They include taking any intellectual property chapter rules out of trade deals like CETA or the Trans-Pacific Partnership trade agreement:

Finally, the Commission calls on countries to permit the simple and accessible licensing of life-saving medicines for generic manufacture, and to adopt immediately a moratorium on any intellectual property rules in international treaties that would impede access to such medicines. It specifically calls on countries with the capacity to export lower-cost, generic medicines -- such as Canada -- "to adopt straightforward, easy-to-use" measures in their law to help respond to the need for medicines. Bill C-398, currently before Parliament, could fix Canada's failed Access to Medicines Regime and enable Canada to lead the charge on this important front. Canada should also demand the removal of any intellectual property provisions in ongoing trade negotiations for the Canada-European Union Trade Agreement (CETA) and the Trans-Pacific Partnership (TPP). Evermore stringent patent barriers and high prices for medicines will mean that millions of people continue to die because they simply cannot afford lifesaving treatment.

The Council of Canadians made the same demand -- to remove the intellectual property chapter from the TPP -- in a joint press release with OpenMedia.ca this weekend. The release advertised the delivery to TPP negotiators of a petition with 90,000 signatures against the secrecy and unfair Internet restrictions in the proposed agreement, which Canada recently joined. This was also the preferred policy of a 2010 Canadian Heritage Committee report looking at the impact ACTA and CETA could have on cultural policy and the Internet in Canada.

According to Inside U.S. Trade, an online news source for trade issues, the United States Trade Representative finally notified Congress today that it intends to include Mexico in the TPP negotiations, a 12th round of which ended in San Diego, California this weekend. This begins a 90-day congressional approval process, after which Mexico will finally be given a copy of the TPP text and allowed to negotiate as a second-rate party. The USTR has not yet sent a similar notice for Canada's inclusion in the talks, which isn't expected to happen until December. It's unclear whether the TPP's intellectual property chapter would be closed by that point.

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