Michael Geist - Canada - EU Trade Agreement Reached "In Principle", Part One: Now Release the Text Canada - EU Trade Agreement Reached "In Principle", Part One: Now Release the Text Friday October 18, 2013 Canada and the European Union this morning formallyannounced that it they have reached an agreement in principle on the Canada - EU Trade Agreement (CETA) (additional posts on the IP provisions, telecom and e-commerce provisions, and the big win for pharmaceutical companies despite declining Canadian investment in research and development). Unfortunately, there was no release of the text and one is apparently not forthcoming for some time as the government argues that there is still some drafting and legal analysis needed (and presumably translation into several languages). However, without the actual text, the public is forced to rely on summary documents that merely provide an overview of the agreement. A transparent process mandates that all Canadians have access to the full text. While the approval process will take a couple of years, Canada and the EU should release the draft text now. ------------------------------ Michael Geist - Canada - EU Trade Agreement Reached "In Principle", Part Two: The Intellectual Property Provisions Canada - EU Trade Agreement Reached "In Principle", Part Two: The Intellectual Property Provisions Friday October 18, 2013 Intellectual property was one of the most contentious aspects of the CETA negotiations, with copyright, patents, and geographic indications all sources of concern. A summary of the impact of CETA on each is posted below (additional posts on the need to release the text and thetelecom and e-commerce provisions). Copyright Early CETA drafts included extensive copyright provisions that would have rendered Canadian copyright law virtually unrecognizable from its current state. The EU position on copyright changed after two developments in 2012. First, Canada passed long-awaited copyright reform that addressed several concerns, most notably legal protection for digital locks and ISP liability. Second, the EU abandoned many of the remaining demands after the European Parliament voted overwhelmingly in July 2012 to reject Anti-Counterfeiting Trade Agreement, striking a major blow to the hopes of supporters who envisioned a landmark agreement that would set a new standard for intellectual property rights enforcement. The resulting copyright provisions appear benign, as the government is claiming that CETA is consistent with current Canadian law: CETA echoes the recent Copyright Modernization Act, which supports advances in technology and international standards. It will enhance the ability of copyright owners to benefit from their work while at the same time allowing Internet service providers, educators, students and businesses the tools they need to use new technologies in innovative ways. CETA also brings Canada in line with the World Intellectual Property Organization Internet Treaties. CETA upholds the right balance struck in the Copyright Modernization Act between the needs of creators and users and is supported by creator groups, consumer organizations and businesses that help drive Canada’s economy. Canadian law is already in line with the WIPO Internet treaties (the ratification process is currently underway) and the reference to "upholding the right balance" suggests no further legislative reforms will be needed. Patents Patents was the other major source of contention with Canada expected to cave on several reforms that would increase pharmaceutical costs for Canadians and benefit the large pharmaceutical companies. The summary document suggests that the pharmaceutical companies only got part of what they wanted. They had demanded both data exclusivity (which refers to restrictions on the use of clinical test data by generic competitors) and patent term restoration (which refers to the extension of patents to account for a period when a patent is granted but other approvals for sale of the drug are pending). The EU got patent term restoration, which will allow the large pharmaceutical companies to extend the term of their patents and keep generics off the market for an extended period of time. Prime Minister Stephen Harper hasadmitted that this will result in higher health care costs, while a new government report indicates that pharmaceutical investment in research and development in Canada continues to decline. The summary states: With respect to the pharmaceutical sector, CETA will provide extended protection for innovators while ensuring that Canadians continue to have access to the affordable drugs they need. CETA reinforces the Government of Canada’s commitment to attracting and retaining investments that support high-paying jobs in Canada as well as rewarding innovators and ensuring that Canadians are able to reap the fruits of such innovation. This helps keep Canada as an important destination for research and development and supports Canadians’ access to the most innovative medical breakthroughs. Once again, a draft text is needed to fully assess the impact. Geographical Indications Geographical indications (GI) are signs used on goods - frequently food, wine, or spirits - that have a specific geographical origin and are said to possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Given the quality associated with the product, proponents of GI protection argue that it is needed to avoid consumer confusion as well as to protect legitimate producers. Europe has the most extensive geographical indication protections in the world. These include Protected Designation of Origin (PDO), which covers agricultural products produced, processed and prepared in a given geographical area using recognized know-how; Protected Geographical Indication (PGI), which covers agricultural products linked to the geographical area; and Traditional Speciality Guaranteed (TSG), which highlights traditional character, either in the composition or means of production. The net effect of the European system is that hundreds of items enjoy special legal protection. Over the past two decades, Canada has made significant changes to its own geographical indications system. These include taking many popular terms - including Chablis, Champagne, Port, Bordeaux, Burgundy, Medoc, Grappa, Schnapps and Sambuca - off a generic list so that they could enjoy new geographical indication protection. CETA would appear to expand that list, though the government has not provided any specifics: Geographical indications provide exclusive rights for a product based on its geographical origin in cases where origin is considered to confer a particular quality or character to the product. Canada already recognizes geographical indications for wines and spirits - for example, French Cognac and Canadian Whisky. CETA will include a wider recognition of EU geographical indications for foodstuffs, such as certain meats and cheeses (e.g., Chabichou du Poitou), that builds upon Canada’s existing regime for geographical indications. Counterfeit Goods CETA also effectively confirms that the government will be moving ahead with its anti-counterfeiting legislation. The summary states: CETA echoes the government's commitment to combatting trade in counterfeit goods, which is increasingly a source of concern for consumers, businesses and governments. Counterfeit goods are often of poor quality, can be dangerous to the health and safety of Canadians, and disrupt markets for legitimate companies. CETA will ensure simple, fair, equitable and cost-effective enforcement continues, leading to a more predictable regime for intellectual property rights. This suggests that there will be new border measures provisions in Canada, including the power to seize allegedly infringing goods without a court order. Once again, the actual text is needed to compare CETA with current (and proposed) Canadian law.
Michael Geist - CETA Reached "In Principle", Part Three: Meaningless Claims on Telecom & E-commerce CETA Reached "In Principle", Part Three: Meaningless Claims on Telecom & E-commerce Friday October 18, 2013 Without the CETA text, it is very difficult to assess many of the purported benefits of the draft agreement (additional posts on the need to release the text, the IP provisions, and the big win for pharmaceutical companies despite declining Canadian investment in research and development). Consider the benefits for telecommunications and electronic commerce discussed in the government's summary document. On electronic commerce, the government states: Businesses engaged in electronic commerce will benefit from greater certainty, confidence and protection.Twenty years ago, electronic commerce was in its infancy. Today, electronic commerce is a part of our daily lives. Canadians shop and plan holidays online, and buy and download software and entertainment content, including movies, television and music. Advertisers are making increased use of “smart advertising” on the Web to track our shopping habits and promote specific deals likely to interest us. I have no idea what this means - if anything - from a legal perspective, though the supportive references to tracking users online is a potential cause for concern. The telecommunications discussion is similarly evasive: Improved competition ensures greater choice for consumers.The telecommunications sector is important for the economies of Canada and the EU. Not only is telecommunications an ever-growing service sector, it is also one of the most important enablers in the modern economy, providing the means of delivering other services that Canadians depend on. CETA will ensure that all players in the telecommunications market have fair access to networks and services, and ensure that regulators act impartially, objectively and in a transparent manner. Service providers and investors will benefit from increased transparency and predictability of the regulatory environment and secure, competitive marketplaces. Does fair access mean a further removal of foreign investment restrictions? Any changes to the CRTC process? The answer is presumably no, that CETA will not change much on the existing telecom rules, but without the draft text there is no certainty on the issue. ------------ Michael Geist - CETA Reached "In Principle", Part Four: Pharma Gets Patent Extension Despite Declining R&D in Canada CETA Reached "In Principle", Part Four: Pharma Gets Patent Extension Despite Declining R&D in Canada Friday October 18, 2013 As noted in another post on the CETA intellectual property provisions, one of the key elements in the deal from a European perspective was patent term restoration, which effectively allows the large pharmaceutical companies to extend the term of their patents (additional posts on the need to release the draft text and the telecom and e-commerce provisions). The change will delay the entry of generic alternatives and, as acknowledged by Prime Minister Stephen Harper, will raise health care costs across the country (estimates run into the billions). In fact, the Ontario government has already indicated that it may seek compensation (or "mitigate the impact") for the additional costs. Ironically, the CETA deal comes just as the government's Patented Medicines Prices Review Board issued its annual report that shows that the major pharmaceutical companies spending to sales ratio continues a decade-long decline, hitting its lowest level since the last time the Canadian government caved to pressure for patent reforms. According to the PMPRB released data (which is gathered from the companies themselves), the R&D-to-sales ratio for members of Rx&D (the lead pharma lobby) was 6.6% in 2012, down from 6.7% in 2012. The Rx&D ratio has now been less than 10% for the past ten consecutive years and is approaching its lowest level since tracking began in 1988. From a global perspective, Canada fares very poorly, ranking ahead of only Italy with countries such as France, Germany, Sweden, Switzerland, the U.K., and U.S. all seeing greater expenditures. The PMPRB identifies the factors on where companies locate investment or research: Several comparator countries, which have patented drug prices that are, on average, substantially less than prices in Canada, have achieved R&D-to-sales ratios well above those in Canada. Increasingly, the impact of the prices of medicines on companies' decisions on where to locate investment or conduct research is being questioned. Other factors such as where companies can find the best science base at reasonable cost, taxation incentives, flexible labour markets and economic stability are seen as being important. Note that extending patent term is not viewed as a key factor, suggesting that CETA will result in higher health care costs but is unlikely to make much difference in increasing pharmaceutical research and development in Canada.
These trade agreements are negotiated in secret and require no vote....then later they come back to Parliament to change our domestic law "to be compliant with our international trade partners..." If we rise up (as with ACTA) and force them to stop one bad deal, they simple rebrand it and pass it later.(CETA). *sigh*
