Okay. The U.S. is now using notice-and-takedown, correct?
Evidence of meeting #10 for International Trade in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tpp.
Evidence of meeting #10 for International Trade in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tpp.
1:25 p.m.
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
Okay. The U.S. is now using notice-and-takedown, correct?
1:25 p.m.
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
Okay. I wanted to clarify that in my head. It was a little unclear, probably my fault, so I appreciate that clarification.
Outside of intellectual property, I think you are all in agreement that the terms, the provisions, of ISDS are lacking in this agreement, but I don't think anyone's gone so far as to say investor rights deserve no protection. Is there an ideal regime, provisions that you would like to see that would uphold investor rights without perhaps undermining state rights at the same time?
1:25 p.m.
Ecological Economist, As an Individual
I think Gus Van Harten at the Osgoode Hall Law School has done a lot of research on the whole ISDS provisions. One of his arguments is you don't need to have these kinds of provisions, and he recommended that we push back, and go back to using court systems and that kind of thing. The UN also had their representatives, independent experts on promotion of democratic and equitable international order.
The scope of the need for reform in the system is quite vast, especially given the kinds of judgments that are coming out that are not appealable.
1:25 p.m.
As an Individual
There is also a kind of middle ground where, in the Canada-EU trade agreement, the ISDS provisions were renegotiated after it had been signed, and they added a lot of extra safeguards, mostly because the agreement was not going to be acceptable to Europe with the ISDS provisions as they were.
I personally favour these options, but if you weren't able to go that far, you could at least model it on the Canada-EU trade agreement.
1:25 p.m.
Digital Rights Specialist, OpenMedia
What has been well pointed out by others as well is that ISDS provisions don't serve a place between industrialized nations with fully formed court systems. What we are going to see in the ISDS provisions, which I recently found out and which shocked me, is that the corporations involved in the disagreements get to appoint a single judge, and then that judge gets to appoint the next judge. That is hugely concerning to me. That bears none of the hallmarks of a legal system and a judicial system in Canada that we consider to be open, transparent, and accountable.
1:25 p.m.
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
I have some familiarity with Canada's judicial system, being a lawyer and a litigator. I can assure you that these private arbitrations and mediations happen in the Canadian judicial system too. Parties agree on appointing arbitrators. It happens all the time. It's not that unusual in the judiciary world.
Just to make that distinction, this happens all the time. Parties can agree on how to settle their own disputes, even in our Canadian system. I just wanted to point that out.
Do I have any time left, Mr. Chair?
1:25 p.m.
Liberal
Kyle Peterson Liberal Newmarket—Aurora, ON
The only other issue that I wanted to raise—actually, Mr. Brand brought it up—is that the new ISDS under CETA appears to have, among other things, appellant rights or the right to appeal. Is that a component or a feature that you would look at as, let's say a valuable addition to any changed ISDS provisions?
1:25 p.m.
Ecological Economist, As an Individual
It's critical to have appellant rights, and I was actually going to point out the example you just gave of parties being able to go to an arbitrator.
They would be able to access the court system if that didn't work out, and yet we don't have that parallel in international agreements.
1:30 p.m.
Liberal
The Chair Liberal Mark Eyking
That wraps up your time, Mr. Peterson.
We're going to go to the Conservatives, and Mr. Ritz, for five minutes.
1:30 p.m.
Conservative
Gerry Ritz Conservative Battlefords—Lloydminster, SK
Thank you for your valuable testimony here today. It's very interesting.
Mr. Brand, you're a software developer. Do you have any of your software development under patent now?
1:30 p.m.
As an Individual
I don't actually hold any patents. I did apply for a U.S. patent at one point, but the company I was working for at the time decided not to go through with it. It wasn't worth the expense, basically.
1:30 p.m.
Conservative
Gerry Ritz Conservative Battlefords—Lloydminster, SK
No, I understand that. You actually have better coverage when you're applying than when it's actually in place, at the end of the day.
An increase in patent coverage is not a bad thing if you hold a patent, right?
1:30 p.m.
Conservative
Gerry Ritz Conservative Battlefords—Lloydminster, SK
It's good for the patent holder, but it may not be good for generics coming out of it later on. I know that in Canada right now we have a bit of a patchwork. I did some of this patent work years ago. There is a basic number of years, then there are appeals, and it goes on and on. Right now some of our patents can be held for up to 28 and 30 years simply running through that appeals process.
Under the new provisions in both the CETA and the TPP, it's 20 years, done. There's no more pushing it past. So in a sense, in a lot of cases you could see generics come onto the system sooner rather than later. That's just one point.
1:30 p.m.
As an Individual
There are also provisions, though, to do with extending the patent based on delays in issuing times and things like that, which I think are—
1:30 p.m.
Conservative
Gerry Ritz Conservative Battlefords—Lloydminster, SK
Right. And that comes to governments of the countries to actually—I can't say “get their shit together”—do the job and get it done sooner rather than later, and not drag their heels, which is good.
Ms. Sali, you talked about your international footprint. What countries are you represented in? When it comes to the TPP groups, the 12 that were there, how many do you have footprints in then?
1:30 p.m.
Digital Rights Specialist, OpenMedia
I would say we have our biggest contingencies in the U.S. and Canada, and in New Zealand and Australia. We work mainly in English, so obviously that's a barrier to us. We also do have community members in Japan and we have community members in Chile and Peru. I'm not entirely sure how many we have in Malaysia, but I could certainly look.
1:30 p.m.
Conservative
Gerry Ritz Conservative Battlefords—Lloydminster, SK
No, that's great. You've covered the deck, so you're good to go.
Were you making these same arguments in each one of the member countries?
1:30 p.m.
Digital Rights Specialist, OpenMedia
Absolutely, yes. When I spoke with the negotiators in the last round that I attended, I gave them a very similar presentation to what you heard today.
1:30 p.m.
Conservative
Gerry Ritz Conservative Battlefords—Lloydminster, SK
Are there any other countries that are receptive to it and are looking at it?
1:30 p.m.
Digital Rights Specialist, OpenMedia
Broadly, I can say, from what I have heard from negotiators from different countries and also just members of different countries who are raising concerns with us—and this is one of my biggest concerns about the intellectual property chapter—that it exists to extend a U.S. dominance in this industry. That is basically what every single country's negotiator told me when I spoke with him.
We don't have a lot of chips to bargain here. Unfortunately, in the economy of the future—in the intellectual property economy, in the innovation economy—we are stuck with whatever the U.S. tells us we are taking.
For example, the negotiator from Brunei told me, flat out, “You know what, I didn't find a non-disclosure agreement, and I don't care.” He said to me, “What does Brunei really have to bargain with here at the table? What do we really have to do? We don't even have the technology to implement some of the pieces of the Trans-Pacific Partnership's IP chapter, yet we are being forced to accept it.”
They are negotiating on a much more of a—