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Jun 6, 2012

Tensions Rise Over Another International Agreement - CETA

After covering the developments of SOPA, ACTA, and the TPP, we are turning our attention to another alphabet agreement – CETA (Comprehensive Economic and Trade Agreement). This agreement is between Canada and Europe. Like ACTA and TPP, both contain copyright provisions that would dramatically alter the Internet landscape in both places. We take a look at what CETA contains and why tensions are rising over it.

CETA was mentioned during our interview with Michael Geist. We promised to keep tabs on this agreement and we are delivering. CETA is a particularly secretive agreement. Unlike ACTA and even the TPP, this agreement has generated fewer headlines. We mentioned CETA back in 2009 because of word that Europe and Canada was thinking of putting in place a one strike policy (rather than a three strike policy in the TPP and, at one point, in ACTA). Since then, CETA has managed to remain in the shadows unlike it’s, comparatively speaking, rock star counterparts ACTA and TPP.

What is in CETA exactly also remains unclear. Unlike other agreements, trying to figure out what is in CETA is difficult because there was only the one leak in 2009. According to Wikipedia, the copyright provisions in CETA are as follows:

- 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.

While it could be quite a lot worse, it could stand to be substantially better as well. Of course, this is just the copyright side. There are other sides of this agreement that is not traditionally covered by us here at ZeroPaid. While we don’t cover environmental issues, the environmental issues raised in this agreement is apparently causing tensions to rise in Canada over the agreement. An indirect benefit for those trying to fend off threats against the Internet like CETA.

According to the Council of Canadians, municipalities in the North West Territories has objected to CETA and is demanding an exception from the treaty altogether last month:

The Northern Journal reports today that, “The [Northwest Territories] Association of Communities (NWTAC) asked for an exemption from the proposed free trade agreement in a resolution passed at its annual general meeting (AGM) May 10-13.” The paper quotes Yellowknife Mayor Gordon Van Tighem, president of the NWTAC, as saying CETA could have detrimental effects on a local government’s ability to support their local small businesses while adding an extra layer of bureaucracy and exposing municipalities to legal challenges and costs should they not “toe the line.”

News about the NWTAC exemption request, which has been sent to NWT Minister of Industry, Tourism and Investment David Ramsay with the expectation the government will respond by end of July, comes a day after news of two more communities (in Ontario and Alberta) that are asking for more information about the CETA negotiations.

The Red Deer Advocate reported Tuesday that, “The City of Red Deer is joining more than 50 other municipalities, government associations and school boards seeking clarity on a future trade agreement between Canada and the European Union.” City council will receive a report on June 25 as to whether it has heard enough information about the EU negotiations from Red Deer MP Earl Dreeshen and Ed Fast, international trade minister.

The subscription-only article was sent to us by Ken Collier, chair of the Red Deer Council of Canadians chapter, which is urging city council to demand a municipal exemption from the Comprehensive Economic and Trade Agreement (CETA). Several councillors agree this is the best way to go.

According to The Advocate, Councillor Dianne Wyntjes said, “This agreement, from what I’ve read, would put our services and decision making at risk… This trade agreement makes me question; where is the future of our public services, specifically those that we as municipalities provide?”

Shortly after, the Council of Canadians have raised more alarm bells by saying CETA would hinder recycling projects in the Canadian province of Saskatchewan as well. While this is only a snippet, the whole article is certainly worth reading:

Based on leaked documents, we see that Canada has tabled only minimal protections for existing local monopolies. Changes or expansion to these services would have to be in line with CETA rules that favour and encourage private delivery and free market principles.

Strangely, those same leaked documents show the EU wants to protect the right of its own local governments to expand or create new water and other municipally delivered services. We have not heard a good answer from the federal government or provinces about this discrepancy, but the impression it gives is that Canada is open for Europe’s large, competitive private water, waste management, energy and other infrastructure companies looking to increase profits.

CETA procurement rules also prohibit covered public entities, which will almost certainly include Saskatoon and other cities from considering local development benefits when awarding public contracts. And the deal expressly forbids municipalities from discriminating among suppliers based on the amount of national content – parts and labour – going into a given project.

Saskatoon’s recycling arrangement clearly upsets services and procurement rules in the CETA, undermining the city’s ability to seek local economic, social or economic spinoff benefits from public spending.

The op-ed received political attention with Ed Fast defending CETA:

The Council of Canadians’ op-ed article, CETA can hinder recycling project (SP, May 31) falsely implies that the Comprehensive Economic and Trade Agreement with the European Union would prevent municipalities such as Saskatoon from making procurement and service-delivery decisions in the best interests of their community, and put at risk provincial government monopolies, including public utilities.

In fact, nothing in the CETA would prevent Saskatoon from using companies such as Loraas Disposal or Cosmopolitan Industries from delivering local services. Contrary to the op-ed, an agreement would not have any impact whatsoever on the procurement of these types of services.

We will ensure that decisions regarding public services will always be made domestically and in the best interests of Canadians. That extends to decisions about municipal procurement generally.

[...]

In fact, municipal procurement practices should not change very much under the CETA. Municipalities are already required by the Agreement on Internal Trade to have an open and transparent procurement processes. In fact, the CETA thresholds will be much higher than the AIT thresholds.

In another development, Michael Geist pointed to another article where provincial leaders are also expressing reservations on CETA:

OTTAWA – The provincial premiers have undertaken a letter-writing campaign to demand compensation from the federal government for any increase in drug costs that might come of a free trade agreement with Europe.

B.C. Premier Christy Clark says she and other premiers have each written to Ottawa urging federal negotiators not to agree to anything that would drive up the cost of pharmaceuticals.

Among the European Union’s demands are an extension of brand-name patents for up to five years to compensate companies for time tied up in bureaucratic approvals.

They also want to extend the time that a brand-name company’s recipe for a drug would remain secret from companies trying to make knock-offs.

And while Ottawa has not yet formally agreed to any of the demands, it has not ruled anything out either —leaving many provincial and federal insiders, as well as trade experts, to suspect the federal government will bend to at least part of the EU ask.

“All premiers have sent letters, I’m told, to the federal government, expressing our concern about this specific issue, because we want to make sure, as I said, that British Columbia’s interests are represented,” Clark told Opposition NDP Leader Adrian Dix in an exchange about drug patents on Friday.

“This is something that we’ve brought to the federal government’s attention…. If this agreement is not concluded in a way that meets British Columbia’s concerns, we would like them to reimburse us for those added costs.”

While there are objections, apparently, one provincial leader is also not seeking consultation on CETA:

British Columbia Premier Christy Clark has nixed a promise to consult with the public on the Comprehensive Economic and Trade Agreement between Canada and the European Union.

“No, we don’t intend to do that,” Clark told NDP Leader Adrian Dix during debate on her office’s budget last week. “The discussions are, I’m advised, getting closer to the end. We don’t intend to do any further consultation on it.”

That’s a very different answer than she gave a year ago in the same forum, when she said, “There will be, I’m told, consultation on this agreement. There will be many avenues for the public’s input.”

It also differs markedly from the one Jobs, Tourism and Innovation Minister Pat Bell gave The Tyee in Oct., 2011, when he said, “I’m anticipating we will still do that, it’s just unclear what we’re consulting on at this point.”

Bell said at the time he had already consulted extensively with the Union of B.C. Municipalities on the agreement, and would likely embark on a wider public consultation if it looked likely the agreement would succeed.

“The government seems to have backed down on its commitment to openness and consultation,” said Dix in a phone interview. “That may not be surprising, but it’s disappointing.”

While there is a lot to digest that seems to not have much to do with copyright, it is very revealing to see all of this happening because it shows that even if Canada is moving ahead on CETA which does contain all these copyright provisions, it’s doing so with the objections of various other lower level governments from the municipal level to the provincial level level. In other words, the CETA deal is leaving a lot of people with a sour taste in their mouths. Considering the copyright related provisions in the agreement, this is all good news even if the points of contention have nothing to do with copyright in the first place.

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