So there were two global concerns with the anti-counterfeiting trade agreement. First, the secrecy associated with the negotiations led to widespread concern about negotiating an intellectual property agreement outside the conventional international forum of the World Intellectual Property Organization and with a level of secrecy normally accorded to military documents.
Second, the substance of the agreement extended far beyond addressing commercial counterfeiting issues. Instead, there was a concerted effort to renegotiate international intellectual property law by increasing the level of protection beyond required norms.
The final agreement raises some concerns—and I'm talking about ACTA here—though many of the most problematic provisions were ultimately amended under pressure from a coalition of countries that included Canada. I raise ACTA because many of the concerns associated with that treaty are being replicated within the CETA process, yet this time there is no coalition to argue for maintaining international flexibilities.
First, the same secrecy concerns that arose within the context of ACTA arise here. It's true that there have been leaks of various CETA chapters, including the intellectual property chapter, yet commenting on leaked chapters is not a full substitute for full and open consultations that permit expert analysis and opinion on proposed treaty rules. Waiting until we have a final or even near final text isn't good enough. We need public access for the purpose of informed commentary before the final trade-offs and the negotiations are concluded.
Second, and even more so, the substantive copyright provisions within CETA, from what we know, raise some significant concerns. In this regard, I'd like to make five brief points.
First, the inclusion of intellectual property policy marks a dramatic shift for Canadian trade negotiations, which have conventionally addressed market entry, investment, and tariff issues. As Dan Ciuriak, a former deputy chief economist at the Department of International Trade, has noted with respect to the CETA IP provisions, the process is not a sound one. In a hotly contested area, to have fundamental business regulation made in this fashion is not sound.
Second, the inclusion of copyright provisions within CETA is almost completely one-sided. With the exception of an anti-camcording provision that the EU has already rejected within ACTA and is therefore unlikely to accede to here, Canada has made virtually no demands on the copyright front. There is simply no evidence that there is much in this for us. Rather, the copyright provisions are a rather obvious attempt by the Europeans to export rules to Canada that they have been otherwise unable to do via ACTA or other international agreements.
Third, some rights holders have used the CETA process as an opportunity to circumvent domestic copyright reform by promoting reforms within CETA that may later tie our hands for a made-in-Canada approach on copyright. For example, the Canadian Publishers' Council has provided a submission to the government calling for an extension in the term of copyright and the creation of a sui generis approach to database protection, new kinds of protections for databases. Both of these reforms were soundly rejected during the 2009 copyright consultation that the government conducted and are not found in Bill C-32, yet this circumvention of the domestic policy process through international agreements carries significant dangers if we're not careful.
Fourth, the substantive proposals demanded by the EU are designed to rework Canadian copyright law in a manner that extends well beyond international law. Indeed there are instances where Europe's failed international efforts are being recycled within CETA despite the fact that Canada stood opposed in international fora. For example, the World Intellectual Property Organization has been negotiating a proposed broadcasting treaty for over a decade. The proposed treaty has never managed to obtain broad support, with many expressing understandable concern that extending new rights to broadcasters merely for the act of broadcasting represents a significant shift away from traditional notions of copyright that serve the interests of both creators and users. Canada has expressed similar doubts at WIPO, yet CETA seeks to import the failed provisions into Canadian law.
Another critically important example are the digital lock rules found within CETA. As you likely know, the digital lock rules in Bill C-32 have been among the most contentious in the bill. In fact those provisions have always been contentious, dating back to their initial inclusion in the WIPO Internet treaties in 1996. Those treaties established considerable flexibility and implementation in order to obtain consensus among the differing views on the issue.
The same concerns arose within the context of ACTA last year. CETA includes digital lock provisions that extend beyond the requirements in the WIPO Internet treaties, and therefore would remove some flexibility as Canada considers how best to comply with those treaties.
Fifth, there are potential concerns with CETA and the current draft of Bill C-32. For example, Bill C-32 codifies the notice and notice approach that has been used by Internet service providers across Canada for many years when they receive notifications of alleged infringement. The notice and notice approach in Bill C-32 strikes a good balance between the rights of copyright owners and the interests of Internet subscribers. Yet the Europeans have proposed language that would require ISPs to remove or disable access to content simply on being informed of alleged infringement—not proven, simply alleged. This appears to be an attempt to bring in a notice and take-down system that was rejected in Bill C-32; it was rejected in Bill C-61 before it; and it was rejected in Bill C-60, which the Liberals introduced even before that.
Another example involves statutory damages. Bill C-32 rightly distinguishes between commercial infringement, which carries full statutory damages of up to $20,000 per infringement--it gets tough with cases of commercial infringement--and non-commercial infringement, which carries a $5,000 cap on damages. The Europeans have proposed language that may contradict the Bill C-32 approach. Indeed, the Canadian counterproposal on this currently seeks to preserve the ability to make adjustments in special cases.
In sum, the copyright provisions were not part of the Canada-U.S. Free Trade Agreement or NAFTA. They were largely excluded or kept very minor in our more recent trade agreements. CETA represents a very significant change that's part of a broader effort to pressure Canada to change its copyright laws.
While most agree that there is need for some reforms, discarding a made-in-Canada approach for one drafted in Brussels raises significant concerns that implicate both future and current legislative proposals.
Thank you.